Education Law: Equality, Fairness, and Reform Second Edition

Equality rests at the center of the challenges and commitments of modern education law. The issues it raises are far from settled. As a general matter, much of the law of equality is relatively recent and may not have had a full opportunity to mature. Yet some limitations in equality may have little to do with the passage of time and more to do with the fact that equality law—more than any other area of law—poses an institutional challenge to school systems and their culture. This tension has dominated education law over the past four decades, with the law vacillating between extending and retracting equality.

The Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954), is the foundation of modern education law and its various equality frameworks. The direct impact of Brown was on racial segregation in schools, but the case also triggered a shift in the nation’s commitment to public education and its understanding of equality of educational opportunity. This shift still reverberates more than half a century later. Its ripple effects now extend far beyond just racial equality and include equality based on ethnicity, poverty, gender, disability, language status, and homelessness. Each of these substantive equality paradigms is indebted in some way to Brown. Before Brown, equality for most disadvantaged groups was not even a consideration, but Brown created a concept and an expectation of racial equality that could be naturally extended to other disadvantaged groups. Since then, numerous statutes and judicial rationales for equality in areas other than race have been modeled on or adapted from racial equality standards.

Brown also altered the nation’s basic concept of public education itself. Prior to and immediately following Brown, courts and the national culture did not fully acknowledge a duty to deliver a quality education to children, or grasp the notion that education was a public good that citizens could demand. For instance, the requirement that all children attend school on a regular basis through high school was a principle that only slowly evolved and was met with resistance continuing into the 1960s. Operating within this tradition, the Court wrote in Brown that “the opportunity of an education, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” This statement was not historical semantics but a carefully crafted acknowledgment that the state need not offer children an education at all. Thus, it was only upon offering education that equal protection was triggered.

Over time, the basic right to education has been cemented and is no longer something that the state might simply “choose” to provide; the public now expects the state to provide it. Few can see it any other way. Although Brown did speak directly to this change, subsequent courts have identified Brown as the intellectual and moral grounding for an affirmative state duty to educate students. In fact, Brown may be more often quoted for its simple articulation of what education means to our society than its condemnation of segregation. To serve any number of differing ends, courts, scholars, and legislatures frequently reiterate Brown’s pronouncement that

[t]oday, education is perhaps the most important function of state and local governments. “Compulsory school attendance” laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.

347 U.S. 483, 493 (1954).

Notwithstanding its primacy in modern education law, Brown was not the first Supreme Court’s first major pronouncement of education law. Most cite Pierce v. Society of Sisters, 268 U.S. 510 (1925), as the first foundational case dealing with education. The Court in Pierce recognized two crucial principles. First, parents have a right to control the upbringing and education of their children. Second, the state has the power to reasonably regulate both public and private schools to further a public welfare interest in ensuring children are appropriately educated. In doing so, Pierce affirmed the state’s central role in the delivery of education and parents’ concurrent right to opt out of public education. Important as these principles are to the structure of education and parental participation in it, they did not spark an educational revolution. Rather, the primary importance was to validate the competing interests of the state and people. But it did nothing to obligate the state or individual. In contrast, Brown awakened a legal commitment to equality and a societal commitment to education. Thus, it is with Brown that this casebook begins.

A. MANDATORY SCHOOL DESEGREGATION

1. Prohibiting Racial Segregation

The evolution of race discrimination law begins with the simple prohibition in Brown v. Board of Education against racial segregation in schools. In 1896, the Supreme Court in Plessy v. Ferguson, 163 U.S. 537, held that state-sanctioned segregation did not violate the Constitution so long as the segregation was19 separate but equal. Working within this precedent, the civil rights strategy prior to Brown was not to challenge segregation, but to enforce equality. In a series of Supreme Court cases, the National Association for the Advancement of Colored People (NAACP) demonstrated that states were not affording African Americans equal education. The most obvious instances of inequality were in higher education. Some states did not even operate separate schools of higher education for African Americans. Missouri, for instance, paid for African Americans to attend law school outside the state. In Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938), however, the Court held that Missouri must provide African Americans educational opportunities within the state. Thus, the state’s only choices were to build separate institutions of higher education for African Americans or admit African Americans to the traditionally white schools. The NAACP pursued a similar successful strategy in Sipuel v. University of Oklahoma, 332 U.S. 631 (1948). While the Court ordered the admission of African Americans to traditionally white schools in both cases, neither case challenged segregation directly. Segregated schools were constitutional. The violation was the failure to offer African Americans any form of higher educational opportunity, segregated or otherwise.

Prior to Brown, the closest the Court came to directly challenging segregation was in Sweatt v. Painter, 339 U.S. 629 (1950). There, the state of Texas had complied with the principles established in Missouri ex rel. Gaines and Sipuel by creating a separate law school for African Americans. The plaintiffs, however, argued that the separate school was qualitatively unequal to the University of Texas School of Law, and thus African Americans must be admitted. The Court did not hold that segregation was per se unconstitutional, but it found that, given the intangible benefits of attending the state’s flagship law school, the separate school for African Americans was not equal. This rationale provided a crack in the principle of separate but equal by indicating that under certain circumstances segregated schools could not be made equal. Yet, this crack was relatively small in comparison to the entrenched segregation that relied on Plessy. In short, the Court in Brown confronted not only the dominant legal principle of separate but equal, but the dominant cultural norm of segregation. In reading Brown, pay close attention to the extent to which Brown, if at all, overturns Plessy, and how it rationalizes its decision to an audience beyond the legal system.

Brown v. Board of Education (Brown I)

347 U.S. 483 (1954)

Chief Justice Warren delivered the opinion of the Court.

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion.

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they have been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537 (1896). Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court.

Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons born or naturalized in the United States.” Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.

An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states; and compulsory school attendance was virtually21 unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education.

In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of “separate but equal” did not make its appearance in this court until 1896 in the case of Plessy, involving not education but transportation.¹ American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education. In Cumming v. Board of Education of Richmond County, 175 U.S. 528 (1899) and Gong Lum v. Rice, 275 U.S. 78 (1927), the validity of the doctrine itself was not challenged. In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. In none of these cases was it necessary to re-examine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, 339 U.S. 629 (1950), the Court expressly reserved decision on the question whether Plessy should be held inapplicable to public education.

In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other “tangible” factors. Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education.

In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.”

Whatever may have been the extent of psychological knowledge at the time of Plessy, this finding is amply supported by modern authority.² Any language in Plessy contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On23 reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on [two questions: first, whether “Negro children should forthwith be admitted to schools of their choice,” or “this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions;” and second, assuming “this Court will exercise its equity powers to the end described in” the prior question, “should this Court formulate detailed decrees in these cases” and “if so, what specific issues should the decrees reach” or “should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees].”

NOTES AND QUESTIONS

1. Does the Court’s emphasis on education as the most important function of local government and its centrality to children’s entry into society change your response to the problem in Chapter 1 regarding the meaning of equality of educational opportunity? Did the fact that the challenge was based on educational segregation make it easier and more compelling for the Court to intervene?

2. The Court’s holding in Plessy v. Ferguson created a number of legal and social barriers for the Court in Brown to overcome in ruling for the plaintiffs. Did Brown reverse Plessy? Did it address any of the societal norms that Plessy had affirmed?

3. The Court initially heard Brown in 1953, but ordered additional briefing and rehearing to address specific issues. In particular, the Court asked the litigants to address the extent to which the legislative history of the Fourteenth Amendment spoke to issues of school segregation. The Court indicates that the legislative history is inconclusive. In what way, if at all, is that history relevant to the resolution of the case? If many of the drafters of the Fourteenth Amendment would have sanctioned school segregation, should Brown have been decided the other way? Is the plain language of the amendment of any assistance?

Some scholars have indicated that the historical record was not inconclusive and that the framers would have sanctioned segregation. Raoul Berger, The Fourteenth Amendment: Light from the Fifteenth, 74 Nw. U. L. Rev. 311, 326-331 (1979); Mark V. Tushnet, Following the Rules Laid Down: A Critique of “Interpretivism,” and Neutral Principles, 96 Harv. L. Rev. 781, 800 (1983). Michael Klarman writes that based on “text, original intent, precedent and custom, Brown should have been an easy case—for sustaining school segregation.” Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 447 (2004).

Alexander Bickel reaches a similar conclusion about the historical record, but still offers a compelling defense of the Court’s opinion. He emphasizes that “the clock cannot be turned back” and the framers’ original understanding is an aid, just as it is with statutory interpretation, but it is not a definitive source. Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 2-6 (1955). “The original understanding forms the starting link in the chain of continuity which is a source of the Court’s authority,” yet “finding the original understanding, like applying the Constitution itself, is, at best, ‘not a mechanical exercise but a function of statecraft.’” Id. Thus, Bickel argues that the Court’s task is to fit original understanding within the line of growth of constitutional law.

What is the proper way to interpret the Constitution, and to what extent is history relevant?

4. How did the plaintiffs claim the Court’s decision in Brown differed from all of the cases that preceded it? What support did Sweatt v. Painter provide for the outcome in Brown?

5. The social science on which the Court relied for the proposition that school segregation causes a psychological harm to African Americans has since been discredited and criticized for methodological problems, of which the Court was surely not entirely ignorant. Why might the Court have chosen to rely on this social science harm rather than some other rationale? Could the Court have struck down school segregation without any evidence of a psychological harm? Were there any harms to white students?

Referring to the Court’s citation of social science sources, John Hart Ely writes that the famous “doll study”:

consisted of showing African-American and white children brown and white dolls and asking them which they’d like to play with, which “looked bad,” and related questions. Disturbingly large percentages of the black children tested expressed a preference for the white doll. However, other variables were notoriously not controlled for. Indeed, the implications of the Clark study for Brown appear to be worse than indeterminate, in that a substantially larger percentage of black children attending integrated schools (in the north) had an aversive reaction to the brown doll than did black children attending racially segregated schools.…Heaven knows what all this means, but one thing is clear: The Clark study did not lend credence to the proposition—true as it might be on other grounds—that desegregating the schools was likely to increase black self-respect.

John Hart Ely, If at First You Don’t Succeed, Ignore the Question Next Time? Group Harm in Brown v. Board of Education and Loving v. Virginia, 15 Const. Commentary 215, 217 n.9 (1998).

Regardless of the underlying merits of the social science in Brown, the Court brought social science to the forefront of educational rights. As you will see throughout this casebook, litigants and courts routine rely on social science to answer key education questions. Like Brown, they argue that the state is denying students equal protection or some other right based on social science that shows a particular educational policy is harming or benefiting students. In school segregation, the issues become whether segregation harms student achievement and whether integration improves it. In school finance, the issue is whether25 school expenditures have an impact on student achievement and school quality. With English Language Learner programs, the question will be whether a school’s pedagogical choices are improving or impeding student achievement. The answers to all these questions remain contested in many respects and dependent on social science.

Should social science play such an important role in education litigation? Is there any alternative way to resolve the cases? Is there any other basis on which Brown could have been decided?

6. Chief Justice Warren delayed the decision in Brown to seek unanimity in the decision. The opinion itself is concise and general. Sources indicate this was necessary to secure a unanimous vote. Richard Kluger, Simple Justice 682-699 (1977). How important was unanimity, and would a more explanatory decision that lacked unanimity have been of any benefit?

7. The Court decided Bolling v. Sharpe, 347 U.S. 497 (1954), on the same day as Brown I. Bolling involved segregation in the District of Columbia’s schools. Because the District is not a state, the Fifth Amendment rather than the Fourteenth Amendment applies to its actions. The Fifth Amendment, however, does not include an equal protection clause. Thus, the claim in Bolling was brought under the Due Process Clause of the Fifth Amendment. The Court reasoned that due process also prohibits discrimination and segregation:

[T]he concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The “equal protection of the laws” is a more explicit safeguard of prohibited unfairness than “due process of law,” and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect. As long ago as 1896, this Court declared the principle “that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race.” And in Buchanan v. Warley, 245 U.S. 60, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law. Although the Court has not assumed to define “liberty” with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.

347 U.S. at 499-500.

8. The Court was careful to limit its holding to education, but the decision had wide-ranging effects outside of education. In separate cases following Brown, the Court outlawed segregated golf courses, public parks, libraries, buses, airport restaurants, municipal auditoriums, and courtrooms. Brown v. Louisiana, 383 U.S. 131 (1966); Schiro v. Bynum, 375 U.S. 395 (1964); Johnson v. Virginia, 373 U.S. 61 (1963); Turner v. City of Memphis, 369 U.S. 350 (1962); New Orleans City Park Improvement Ass’n v. Detiege, 358 U.S. 5426 (1958) (per curiam), aff’g 252 F.2d 122 (5th Cir. 1958); Gayle v. Browder, 352 U.S. 903 (1956); Holmes v. City of Atlanta, 350 U.S. 879 (1955).

9. One key aspect of the decision relating to education has been construed more narrowly. As noted above, maybe the most oft-quoted text in Brown, or any Supreme Court opinion, is its statement regarding the importance of education to our society and the individual. In nondesegregation cases, you will see litigants cite to this language to support the principle that education is a fundamental right under the federal Constitution. The Court later rejected this argument in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 35 (1973). Interestingly, however, early versions of the opinion in Brown and Bolling would have based the outcome on the notion that education is a fundamental right under the federal Constitution. Hans J. Hacker, The Neutrality Principle: The Hidden Yet Powerful Legal Axiom at Work in Brown versus Board of Education, 8 Berkeley J. Afr.-Am. L. & Pol’y 5, 46-50 (2006). Apparently, Justices Frankfurter and Jackson objected to this reasoning because of concerns with recognizing substantive rights that are not explicitly enumerated in the Constitution.

Brown v. Board of Education (Brown II)

349 U.S. 294 (1955)

Chief Justice Warren delivered the opinion of the Court.

These cases were decided on May 17, 1954. The opinions of that date, declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.

Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief. These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well.

Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in [Brown I]. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with [Brown I]. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

The judgments below, except that in the Delaware case, are accordingly reversed and the cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of the plaintiffs to schools previously attended only by white children—is affirmed, but the case is remanded for such further proceedings as that Court may deem necessary in light of this opinion.

NOTES AND QUESTIONS

1. What, if anything, did Brown II decide and hold? Did it order schools to desegregate? Did it provide any standards by which to effectuate or gauge desegregation?

2. What does “all deliberate speed” mean? Should the Court have used other language? Advocates and scholars have roundly criticized this language as undercutting the force that the opinion otherwise would have had. For instance, Paul Gewirtz argues:

The phrase “all deliberate speed” is an unusual rhetorical construction: The words “deliberate” and “speed” connote different things, and “all” only intensifies the ambiguity. Style in this case is inseparable from substance. Internal documents now available confirm that the Court intended to signal flexibility, and this apparently was how the opinion was perceived by the Court’s various publics. The Court was not requiring immediate desegregation. [T]he Court was allowing delay and a gradual transition to a nondiscriminatory school system.

Paul Gewirtz, Remedies and Resistance, 92 Yale L.J. 585, 610 (1983). When you read the opinion, did you interpret it as dilatory, neutral, or aggressive? The Court was clearly attempting to balance various interests and concerns. What were they? Were each of them valid considerations?

Almost no desegregation occurred in the decade following Brown I and Brown II. Ten years after Brown, less than 2 percent of African American students in the South attended schools with whites. U.S. Comm’n on Civil Rights, Fulfilling the Letter and Spirit of the Law: Desegregation of the Nation’s Public Schools 4 (1976). Schools did not begin to desegregate in earnest until after the enactment of the Civil Rights Act of 1964 and the Court’s aggressive opinions that followed. Would a more forceful standard in Brown II have resulted in quicker and more sustainable desegregation, or would it have just engendered more resistance and slowed the process? Was the Court implicitly recognizing and responding to its limited capacity to force change?

The Court’s decisions in Brown I and Brown II were followed by public outcry and “a fierce political campaign of ‘massive resistance’ to court-ordered desegregation.” See Kevin M. Kruse, The Paradox of Massive Resistance: Political Conformity and Chaos in the Aftermath of Brown v. Board of Education, 48 St. Louis U. L.J. 1009 (2004); see also Southern Manifesto, 102 Cong. Rec. 4515-16, 84th Cong. (1956) (proclamation by 101 of the South’s 128 congressional leaders that the Court had exceeded its authority and that they would resist it).

James Ryan, however, reveals a more complex story. For instance, while Richmond, Virginia, initially favored massive resistance, middle-class whites there eventually turned against the idea and consented to desegregation. Five Miles Away, A World Apart 42-44 (2010). Ryan explains that they preferred integrated schools to undermining or destroying public education all together. Id.

3. The lack of desegregation did not go entirely unnoticed by the Court. Some lower courts issued desegregation orders only to have both private individuals and public officials interfere with and refuse to implement those orders. The Court in Cooper v. Aaron, 358 U.S. 1 (1958), held that school officials were obliged to comply with lower court orders. The decision itself made no mention of how a school district should desegregate or district courts should proceed, but the Court made it clear that noncompliance with court orders, regardless of their substance, would not be tolerated: “The constitutional rights of respondents are29 not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature.…No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” Id. at 16, 18.

4. Some states indirectly, rather than directly, subverted integration. The Virginia legislature, for instance, authorized school districts to close their public schools and fund private tuition grants instead. Prince Edward County Schools (one of the original districts whose case was consolidated in Brown I) pursued this route and closed their schools. The Supreme Court in Griffin v. Prince Edward County, 377 U.S. 218 (1964), held that this too was unconstitutional and violated equal protection.

PROBLEM

Clinton City School District operates two elementary schools, one middle school, and one high school. In total, 2,000 students attend these schools, but state law and local district policy prohibit African American students from doing so. Instead, 52 African American students of ages 5 to 14 attend a common school, in which students of all grades are taught in a one-room school by one teacher. This school is located on a hill less than half a mile behind the white high school. The district transports older African American children who wish to pursue a high school education 25 miles away to an all-African American high school in another county. A group of African American students from Clinton files suit in federal district court in 1955, arguing that the district is violating the Court’s holdings in Brown I and II.

What arguments will each side likely make? What order would you enter if you were the judge?

2. The Affirmative Duty to Desegregate

The Court’s conciliatory opinion in Brown II placed no immediate requirements on courts or schools to act and thus permitted desegregation to proceed slowly, if at all. A decade later, the Court in Green v. New Kent County finally took an aggressive stance. In Green, the Court expressed impatience with the pace of desegregation and established an immediate mandate for schools to not only stop discriminating, but to affirmatively integrate their schools. This directive alone did not necessarily answer the question of how schools should integrate or how courts should evaluate them. The Court in Green went one step further and indicated it would examine schools’ desegregation efforts based on their effectiveness. Desegregation plans that did not create an immediate and meaningful change in racially segregated attendance patterns would be unconstitutional. The Court also indicated it would look at discrete aspects of school operations beyond student assignment, such as faculty, staff, facilities, transportation, and extracurricular activities. Continuing inequalities in these areas would be treated as indicia of continuing segregation and require remedies.

The facts of Green also bear significant modern relevance on a practical level. The student assignment plan at issue involved freedom of choice. Although expressing significant skepticism, the Court refrained from striking down choice plans as per se unconstitutional. In the decades following Green, parental demand for choice only grew, both within and outside the context of desegregation. You will see issues of educational choice resurface in the chapters on gender, religion, and alternatives to traditional public schools.

Green v. County School Board of New Kent County

391 U.S. 430 (1968)

Justice Brennan delivered the opinion of the Court.

The question for decision is whether respondent School Board’s adoption of a “freedom-of-choice” plan which allows a pupil to choose his own public school constitutes adequate compliance with the Board’s responsibility “to achieve a system of determining admission to the public schools on a non-racial basis.” Brown v. Board of Education II, 349 U.S. 294 (1955).

New Kent County is a rural county in Eastern Virginia. About one-half of its population of some 4,500 are Negroes. There is no residential segregation in the county; persons of both races reside throughout. The school system has only two schools, the New Kent school on the east side of the county and the George W. Watkins school on the west side. In a memorandum filed May 17, 1966, the District Court found that the “school system serves approximately 1,300 pupils, of which 740 are Negro and 550 are White. The School Board operates one white combined elementary and high school (New Kent), and one Negro combined elementary and high school (George W. Watkins). There are no attendance zones. Each school serves the entire county.” The record indicates that 21 school buses—11 serving the Watkins school and 10 serving the New Kent school—travel overlapping routes throughout the county to transport pupils to and from the two schools.

The segregated system was initially established and maintained under the compulsion of Virginia constitutional and statutory provisions mandating racial segregation in public education. The respondent School Board continued the segregated operation of the system after the Brown decisions, presumably on the authority of several statutes enacted by Virginia in resistance to those decisions. Some of these statutes were held to be unconstitutional on their face or as applied. One statute, the Pupil Placement Act, Va. Code Ann. §22-232.1 et seq. (1964), not repealed until 1966, divested local boards of authority to assign children to particular schools and placed that authority in a State Pupil Placement Board. Under that Act children were each year automatically reassigned to the school previously attended unless upon their application the State Board assigned them to another school; students seeking enrollment for the first time were also assigned at the discretion of the State Board. To September 1964, no Negro pupil had applied for admission to the New Kent school under this statute and no white pupil had applied for admission to the Watkins school.

On August 2, 1965, five months after the suit was brought, respondent School Board, in order to remain eligible for federal financial aid, adopted a “freedom-of-choice” plan for desegregating the schools. Under that plan, each pupil, except those entering the first and eighth grades, may annually choose between the New Kent and Watkins schools and pupils not making a choice are assigned to the school previously attended; first and eighth grade pupils must affirmatively choose a school.

The pattern of separate “white” and “Negro” schools in the New Kent County school system established under compulsion of state laws is precisely the pattern of segregation to which Brown I and Brown II were particularly addressed, and which Brown I declared unconstitutionally denied Negro school children equal protection of the laws. Racial identification of the system’s schools was complete, extending not just to the composition of student bodies at the two schools but to every facet of school operations—faculty, staff, transportation, extracurricular activities and facilities. In short, the State, acting through the local school board and school officials, organized and operated a dual system, part “white” and part “Negro.”

It was such dual systems that 14 years ago Brown I held unconstitutional and a year later Brown II held must be abolished; school boards operating such school systems were required by Brown II “to effectuate a transition to a racially nondiscriminatory school system.” It is of course true that for the time immediately after Brown II the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children. The principal focus was on obtaining for those Negro children courageous enough to break with tradition a place in the “white” schools. Under Brown II that immediate goal was only the first step, however. The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about; it was because of the “complexities arising from the transition to a system of public education freed of racial discrimination” that we provided for “all deliberate speed” in the implementation of the principles of Brown I.

It is against this background that 13 years after Brown II commanded the abolition of dual systems we must measure the effectiveness of respondent School Board’s “freedom-of-choice” plan to achieve that end. The School Board contends that it has fully discharged its obligation by adopting a plan by which every student, regardless of race, may “freely” choose the school he will attend. The Board attempts to cast the issue in its broadest form by arguing that its “freedom-of-choice” plan may be faulted only by reading the Fourteenth Amendment as universally requiring “compulsory integration,” a reading it insists the wording of the Amendment will not support. But that argument ignores the thrust of Brown II. In the light of the command of that case, what is involved here is the question whether the Board has achieved the “racially nondiscriminatory school system” Brown II held must be effectuated in order to remedy the established unconstitutional deficiencies of its segregated system. In the context of the state-imposed segregated pattern of long standing, the fact that in 1965 the Board opened the doors of the former “white” school to Negro children and of the “Negro” school to white children merely begins, not ends, our inquiry whether the Board has taken steps adequate to abolish its dual,32 segregated system. Brown II was a call for the dismantling of well-entrenched dual systems tempered by an awareness that complex and multifaceted problems would arise which would require time and flexibility for a successful resolution. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. The constitutional rights of Negro school children articulated in Brown I permit no less than this; and it was to this end that Brown II commanded school boards to bend their efforts.

In determining whether respondent School Board met that command by adopting its “freedom-of-choice” plan, it is relevant that this first step did not come until some 11 years after Brown I was decided and 10 years after Brown II directed the making of a “prompt and reasonable start.” This deliberate perpetuation of the unconstitutional dual system can only have compounded the harm of such a system. Such delays are no longer tolerable, for “the governing constitutional principles no longer bear the imprint of newly enunciated doctrine.” Moreover, a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable. “The time for mere ‘deliberate speed’ has run out, the context in which we must interpret and apply this language (of Brown II) to plans for desegregation has been significantly altered.” The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.

The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation. It is incumbent upon the district court to weigh that claim in light of the facts at hand and in light of any alternatives which may be shown as feasible and more promising in their effectiveness. Where the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system “at the earliest practicable date,” then the plan may be said to provide effective relief. Of course, the availability to the board of other more promising courses of action may indicate a lack of good faith; and at the least it places a heavy burden upon the board to explain its preference for an apparently less effective method. Moreover, whatever plan is adopted will require evaluation in practice, and the court should retain jurisdiction until it is clear that state-imposed segregation has been completely removed.

We do not hold that “freedom of choice” can have no place in such a plan. We do not hold that a “freedom-of-choice” plan might of itself be unconstitutional, although that argument has been urged upon us. Rather, all we decide today is that in desegregating a dual system a plan utilizing “freedom of choice” is not an end in itself. As Judge Sobeloff has put it, “[f]reedom of choice is not a33 sacred talisman; it is only a means to a constitutionally required end—the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a ‘unitary, nonracial system.’”

Although the general experience under “freedom of choice” to date has been such as to indicate its ineffectiveness as a tool of desegregation, there may well be instances in which it can serve as an effective device. Where it offers real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, non-racial system there might be no objection to allowing such a device to prove itself in operation. On the other hand, if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary, nonracial school system, “freedom of choice” must be held unacceptable.

The New Kent School Board’s “freedom-of-choice” plan cannot be accepted as a sufficient step to “effectuate a transition” to a unitary system. In three years of operation not a single white child has chosen to attend Watkins school and although 115 Negro children enrolled in New Kent school in 1967 (up from 35 in 1965 and 111 in 1966) 85% of the Negro children in the system still attend the all-Negro Watkins school. In other words, the school system remains a dual system. Rather than further the dismantling of the dual system, the plan has operated simply to burden children and their parents with a responsibility which Brown II placed squarely on the School Board. The Board must be required to formulate a new plan and, in light of other courses which appear open to the Board, such as zoning, fashion steps which promise realistically to convert promptly to a system without a “white” school and a “Negro” school, but just schools.

The judgment of the Court of Appeals is vacated insofar as it affirmed the District Court and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.

NOTES AND QUESTIONS

1. What, if any, unconstitutional action did the school board engage in subsequent to Brown? Were any students assigned by race to a school or prohibited from attending a school based on race? Why was integration not occurring?

2. What obligation does the Court place on this school district? Is that obligation the natural extension of Brown I, or did the Court create new law? Did Brown order schools to stop segregating or to start integrating? Is there a difference between these two concepts?

3. The Court holds that schools have an affirmative duty to eliminate segregation and its effects, root and branch, which includes steps that would result in African American students attending schools with white students and vice versa. If, however, African American students are no longer prohibited from34 attending white schools and vice versa, what is the violation to be remedied? Is the failure to reverse segregation a continuing constitutional violation?

4. The Court in Green uses the term “unitary” in describing what segregated school districts must become. As you will see, “unitary” becomes a term of art on which subsequent courts frequently rely. What is a “unitary” school district? Courts use the terms “dual” school systems or “formerly dual” school systems to describe districts that are under court order.

5. The Court in Green suggests that particular aspects of the New Kent County schools signaled that they were still racially identifiable and, thus, not unitary. The Court identifies student assignments, faculty, staff, transportation, extracurricular activities, and facilities as the most important areas of inquiry. 391 U.S. at 435. Subsequent courts refer to these areas of school operations as simply the “Green factors.” See, e.g., Freeman v. Pitts, 503 U.S. 467 (1992). These six factors serve as the touchstone of courts’ evaluation of school systems for the next 40 years. Disparities in regard to any of the Green factors are evidence of a school system’s failure to remedy segregation and, thus, a basis for continuing court supervision or remedies.

6. What does the Court indicate will be the measure or standard for whether a school district’s desegregation plan is constitutionally sufficient?

7. In many respects, Green represents the height of the Court’s desegregation jurisprudence. Brown obviously is the most famous and marked a clear shift in equal protection to an antidiscrimination and antisegregation model, but as a practical matter, it had no immediate effect on school operations and organization. Green marks the Court’s insistence that Brown be more than just symbolic. It goes further than Brown and answers questions that Brown left open. Brown left open the possibility that schools might come into constitutional compliance by simply ending the practice of excluding students of color from white schools. Green holds that schools must do far more than that. They must reverse the effects of the history of segregation, which means integrating schools and measuring that integration in some discrete areas of school operations. The Court’s efforts were made easier by the federal executive and legislative branches, which had by this time begun taking steps to end segregation and advance integration. These forces will combine for a short time to increase integration sharply. Is this more aggressive approach to desegregation in Green constitutionally warranted? On what basis?

3. Methods to Achieve Desegregation and the Judicial Authority to Compel Them

The cases that follow Green develop the details and process by which schools should transition to racially integrated schools and the remedies that lower courts can implement. The most important of those decisions was Swann v. Charlotte-Mecklenburg Board of Education, which involved a large metropolitan school district that encompassed both an inner city and surrounding suburbs in the county. In Swann, the Court recognized that when school districts fail to come35 forward with plans that will effectively desegregate schools, lower courts have the authority to order appropriate desegregation plans. Courts need not tolerate the dilatory tactics of schools. In fashioning a desegregation plan, the Court indicated that the scope of the violation should determine the scope of the remedy. Where the violation was broad, as in Swann, so too is the equitable power of the district court. Thus, the Court specifically approved of measures such as redrawing school attendance zones, reassigning students and teachers, and using buses to facilitate the reassignment of students. The Court further noted that racial balance, in some rough sense, would be an appropriate goal and measure of a plan’s effectiveness. Plans that retained individual schools that were racially isolated would be presumptively insufficient.

Beyond its doctrine, Swann is also important in the debate it sparked over neighborhood schools. As the notes following the case will further describe, significant opposition arose to busing and assignment to out-of-neighborhood schools. That sentiment has continued ever since and routinely surfaces in both desegregation and nondesegregation contexts, including current policy debates over voluntary desegregation, charter schools, vouchers, transfer programs, school consolidation, and school finance. In effect, the debate over neighborhood schools is the crucible through which many current school policies must pass.

Swann v. Charlotte-Mecklenburg Board of Education

402 U.S. 1 (1971)

Chief Justice Burger delivered the opinion for a unanimous Court.

The Charlotte-Mecklenburg school system, the 43d largest in the Nation, encompasses the city of Charlotte and surrounding Mecklenburg County, North Carolina. During the 1968-1969 school year the system served more than 84,000 pupils in 107 schools. Approximately 71% of the pupils were found to be white and 29% Negro. Two-thirds of Negro students attended 21 schools which were either totally Negro or more than 99% Negro. [The District Court found the school district’s proposed desegregation plan insufficient and ordered it implement far more aggressive rezoning, grouping, and pairing techniques so as to ensure that “student bodies throughout the system would range from 9% to 38% Negro.”] On appeal the Court of Appeals affirmed the District Court’s order as to faculty desegregation and the secondary school plans, but vacated the order respecting elementary schools[, fearing] that the pairing and grouping of elementary schools would place an unreasonable burden on the board and the system’s pupils.

III

The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. If school authorities fail in their affirmative obligations under [the holdings in Brown v. Board of Education and Green v. New Kent County], judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.

The central issue in this case is that of student assignment, and there are essentially four problem areas: (1) to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system; (2) whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation; (3) what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and (4) what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation.

(1) Racial Balances or Racial Quotas

In this case it is urged that the District Court has imposed a racial balance requirement of 71%-29% on individual schools. If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.

[T]he predicate for the District Court’s use of the 71%-29% ratio was twofold: first, its express finding that a dual school system had been maintained37 by the school authorities at least until 1969; second, its finding that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans.

We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances. As we said in Green, a school authority’s remedial plan or a district court’s remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.

(2) One-Race Schools

The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominantly of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.

In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority’s compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority’s proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.

(3) Remedial Altering of Attendance Zones

The maps submitted in these cases graphically demonstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank—and sometimes drastic—gerrymandering of38 school districts and attendance zones. An additional step was pairing, “clustering,” or “grouping” of schools with attendance assignments made deliberately to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are neither compact nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court.

Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.

No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. “Racially neutral” assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a “loaded game board,” affirmative action in the form of remedial altering of attendance zones is proper to achieve truly non-discriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.

We hold that the pairing and grouping of noncontiguous school zones is a permissible tool.

(4) Transportation of Students

The scope of permissible transportation of students as an implement of a remedial decree has never been defined by this Court and by the very nature of the problem it cannot be defined with precision. No rigid guidelines as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation’s public school children, approximately 39% were transported to their schools by bus in 1969-1970 in all parts of the country.

The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case Davis v. Bd. of Sch. Comm’r of Mobile Cnty., 402 U.S. 33 (1971). The Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer39 privileges. The District Court’s conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record.

Thus the remedial techniques used in the District Court’s order were within that court’s power to provide equitable relief; implementation of the decree is well within the capacity of the school authority.

The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and transported to the schools they were to attend. The trips for elementary school pupils average about seven miles and the District Court found that they would take “not over 35 minutes at the most.” This system compares favorably with the transportation plan previously operated in Charlotte under which each day 26,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school.

An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed.

NOTES AND QUESTIONS

1. The Court in Swann pays close attention to the institutional powers and responsibilities of both courts and school districts. Whose initial responsibility is it to devise a plan for desegregating schools? What overriding principle should guide courts as they consider whether a specific remedy is within their power to order? A continuing theme throughout desegregation law is the tension over who should control educational decisions and policy. At the most general level, the state, parents, and individuals can make competing claims to the right to control education. In the context of desegregation, however, these broad constituencies are fractured even further. The state would include local government, federal government, and the courts, all of which had differing views regarding the future of school segregation and each institution’s authority to intervene. Parents likewise are fractured. Many minority parents asserted the right to send their children to schools on a nonsegregated basis while many white parents asserted the right to be free from attending integrated schools or schools outside their neighborhood. The continued struggle between these various constituencies became a dominant consideration for courts in the later40 years of school desegregation. What role, if any, do these differing interests play in Swann?

2. In evaluating desegregation plans, the Court in Swann indicates that certain facts signal a violation of a school district’s duty to desegregate. What are these indicia of a violation?

3. The most significant principles of Swann are those relating to the remedial power and tools of district courts. What tools or methods does the Court indicate are available to district courts as they shape desegregation plans? Are there any limitations on the extent to which courts can employ these methods?

4. The Supreme Court took up Davis v. Board of School Commissioners, 402 U.S. 33 (1971), as a companion case to Swann. In Davis, the Court affirmed the court of appeals’ holding that “with respect to faculty and staff desegregation the board had ‘almost totally failed to comply’ with earlier orders, and directed the District Court to require the board to establish a faculty and staff ratio in each school ’substantially the same’ as that for the entire district.” Id. at 35. Speaking of the lower court’s failure to come up with a district-wide remedy that integrated schools notwithstanding residential segregation, the Court further indicated that

“neighborhood school zoning,” whether based strictly on home-to-school distance or on “unified geographic zones,” is not the only constitutionally permissible remedy; nor is it per se adequate to meet the remedial responsibilities of local boards. Having once found a violation, the district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, taking into account the practicalities of the situation. A district court may and should consider the use of all available techniques including restructuring of attendance zones and both contiguous and noncontiguous attendance zones. The measure of any desegregation plan is its effectiveness.

Id. at 37 (emphasis added).

5. What, if any, justification is there for adopting school desegregation plans that respond to and overcome residential segregation? john powell writes:

Twenty-five years ago [in Swann], the Supreme Court recognized that the quality of schools has a profound impact on housing choices.…Housing and schools have been central factors in creating our segregated society. The relationship between where we live and where we go to school (or choose to send our children) is clear to most people. One of the most important factors behind a parent’s choice of neighborhood is the quality of the local public school. More often than not, the public schools considered the best are in middle-class and upper middle-class neighborhoods. This link between housing and schools can also maintain segregation. For example, the return to neighborhood schools, for which many policy makers are now calling, may, in fact, maintain or increase the racial segregation of communities that are segregated and isolated by race and class.

john a. powell, Living and Learning: Linking Housing and Education, 80 Minn. L. Rev. 749, 755-756 (1996). He chides subsequent courts and policymakers for ignoring this connection and perpetuating rather than limiting segregation. Id. at 755-761. What role, if any, should neighborhood schools play in today’s student assignment policies?

PROBLEM

The student assignment and transportation policies authorized by Swann are the same basic tools used in one way or another in a large percentage of both mandatory and voluntary desegregation plans, although many have been abandoned or moderated over the years. Visit the website of the school district you attended or a major metropolitan district with which you are familiar and, if available, download the map of the district’s student assignment zones. Next, collect the racial demographics for each of the schools and write them on the map. If possible, download the census map for the school district that details the racial demographics of the neighborhoods. Do you see a connection between residential segregation and school segregation in the district? Does the school segregation appear to be better or worse than the residential segregation? Do you understand why the district has drawn its attendance zones in their current fashion? Can you identify any school assignment policies or changes that might reduce the school segregation? Do you think reducing school segregation would have any effect on the residential segregation in the district? Also consider the long-term sustainability of this plan, whether it will engender resentment, and whether transportation is feasible.

4. The Limits of Desegregation

a. De Jure versus De Facto Segregation

While the Court issued unanimous decisions in the previous cases and consistently expanded the scope of desegregation, in the 1970s the Court began to focus more on the limits than the mandates of integration. The first limitation was to require proof of intentional segregation. In the South, an intentional segregation standard bore little initial relevance because schools had been segregated by law. Thus, intentional discrimination necessarily existed. In the North, however, most jurisdictions did not have explicit laws that required segregation. Rather, local school districts had, on a case by case basis, developed assignment plans or school attendance zones that intentionally segregated students. The Court in Keyes v. School District No. 1, Denver, Colorado held that plaintiffs must demonstrate this intentional discrimination to justify desegregation. Because intentional segregation was not obvious in all instances, this requirement posed a significant evidentiary burden on plaintiffs and marked the outer limits of desegregation. The immediate impact of this holding was felt most directly in the North, but the distinction between intentional (or de jure) segregation and de facto segregation, which was not a result of intentional state actions, would later become a limiting principle of desegregation remedies in all cases.

The Court in Keyes, however, mitigated the full impact of requiring plaintiffs to demonstrate intentional discrimination by creating an evidentiary presumption. The Court held that plaintiffs do not have to establish intentional discrimination in every aspect of a school district. If plaintiffs establish intentional42 discrimination in a substantial portion of a school district, all other segregation in the district will be presumed to be a result of intentional segregation. This “Keyes presumption” would be vital in assisting plaintiffs in establishing constitutional violations in the years that followed.

As you read Keyes, consider whether the distinction between de jure and de facto segregation is a meaningful one, whether all school segregation is attributable to the state and requires a remedy, and whether it is enough that the state operates schools that are racially segregated regardless of its purpose. Also consider whether, as a practical matter, it makes sense to place the burden of demonstrating intentional discrimination on plaintiffs and whether it makes sense to afford plaintiffs the benefit of a presumption once they establish segregation. Should there be any limits to this presumption? Keep in mind that the answers to these questions will affect not only the result in Keyes, but will structure what is permissible in all future school district policies.

Keyes v. School District No. 1, Denver, Colorado

413 U.S. 189 (1973)

Justice Brennan delivered the opinion of the Court.

This school desegregation case concerns the Denver, Colorado, school system. That system has never been operated under a constitutional or statutory provision that mandated or permitted racial segregation in public education. Rather, the gravamen of this action is that respondent School Board alone, by use of various techniques such as the manipulation of student attendance zones, school site selection and a neighborhood school policy, created or maintained racially or ethnically (or both racially and ethnically) segregated schools throughout the school district, entitling petitioners to a decree directing desegregation of the entire school district.

Petitioners apparently concede that in the case of a school system like Denver’s, where no statutory dual system has ever existed, plaintiffs must prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action. Petitioners proved that for almost a decade after 1960 respondent School Board had engaged in an unconstitutional and undeviating policy of deliberate racial segregation in the [northeast zone of the school district that] isolate[d] Negro students’ in segregated schools ‘while preserving the Anglo character of (other) schools.’” In addition, there was uncontroverted evidence that teachers and staff had [also been segregated] throughout the school system. Respondent argues, however, that even if state-imposed segregation does exist in a substantial part of the Denver school system, it does not follow that the District Court could predicate on that fact a finding that the entire school system is a dual system. We do not agree. We have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements of de jure segregation as to

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each and every school or each and every student within the school system. Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Bd. of Educ., 347 U.S. 483 (1954) (Brown I), the State automatically assumes an affirmative duty “to effectuate a transition to a racially nondiscriminatory school system,” Brown v. Bd. of Educ., 349 U.S. 294 (1955) (Brown II), that is, to eliminate from the public schools within their school system “all vestiges of state-imposed segregation.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971).

This is not a case, however, where a statutory dual system has ever existed. Nevertheless, where plaintiffs prove that the school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers, and facilities within the school system, it is only common sense to conclude that there exists a predicate for a finding of the existence of a dual school system. Several considerations support this conclusion. First, it is obvious that a practice of concentrating Negroes in certain schools by structuring attendance zones or designating “feeder” schools on the basis of race has the reciprocal effect of keeping other nearby schools predominantly white. Similarly, the practice of building a school to a certain size and in a certain location, “with conscious knowledge that it would be a segregated school,” has a substantial reciprocal effect on the racial composition of other nearby schools. So also, the use of mobile classrooms, the drafting of student transfer policies, the transportation of students, and the assignment of faculty and staff, on racially identifiable bases, have the clear effect of earmarking schools according to their racial composition, and this, in turn, together with the elements of student assignment and school construction, may have a profound reciprocal effect on the racial composition of residential neighborhoods within a metropolitan area, thereby causing further racial concentration within the schools. We recognized this in Swann.

In short, common sense dictates the conclusion that racially inspired school board actions have an impact beyond the particular schools that are the subjects of those actions. This is not to say, of course, that there can never be a case in which the geographical structure of, or the natural boundaries within, a school district may have the effect of dividing the district into separate, identifiable and unrelated units. Such a determination is essentially a question of fact to be resolved by the trial court in the first instance, but such cases must be rare. In the absence of such a determination, proof of state-imposed segregation in a substantial portion of the district will suffice to support a finding by the trial court of the existence of a dual system. Of course, where that finding is made, as in cases involving statutory dual systems, the school authorities have an affirmative duty “to effectuate a transition to a racially nondiscriminatory school system.” Brown II, 394 U.S. at 301.

III

Although petitioners had already proved the existence of intentional school segregation in the [northeastern portion of the district], this crucial finding was totally ignored when attention turned to the core city schools. Plainly, a finding44 of intentional segregation as to a portion of a school system is not devoid of probative value in assessing the school authorities’ intent with respect to other parts of the same school system. On the contrary where, as here, the case involves one school board, a finding of intentional segregation on its part in one portion of a school system is highly relevant to the issue of the board’s intent with respect to the other segregated schools in the system. This is merely an application of the well-settled evidentiary principle that “the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent.” 2 J. Wigmore, Evidence 200 (3d ed. 1940). “Evidence that similar and related offenses were committed…tend(s) to show a consistent pattern of conduct highly relevant to the issue of intent.” Nye & Nissen v. United States, 336 U.S. 613, 618 (1949). Similarly, a finding of illicit intent as to a meaningful portion of the item under consideration has substantial probative value on the question of illicit intent as to the remainder.

Applying these principles in the special context of school desegregation cases, we hold that a finding of intentionally segregative school board actions in a meaningful portion of a school system, as in this case, creates a presumption that other segregated schooling within the system is not adventitious. It establishes, in other words, a prima facie case of unlawful segregative design on the part of school authorities, and shifts to those authorities the burden of proving that other segregated schools within the system are not also the result of intentionally segregative actions. This is true even if it is determined that different areas of the school district should be viewed independently of each other because, even in that situation, there is high probability that where school authorities have effectuated an intentionally segregative policy in a meaningful portion of the school system, similar impermissible considerations have motivated their actions in other areas of the system. We emphasize that the differentiating factor between de jure segregation and so-called de facto segregation to which we referred in Swann is purpose or intent to segregate. Where school authorities have been found to have practiced purposeful segregation in part of a school system, they may be expected to oppose system-wide desegregation, as did the respondents in this case, on the ground that their purposefully segregative actions were isolated and individual events, thus leaving plaintiffs with the burden of proving otherwise. But at that point where an intentionally segregative policy is practiced in a meaningful or significant segment of a school system, as in this case, the school authorities cannot be heard to argue that plaintiffs have proved only “isolated and individual” unlawfully segregative actions. In that circumstance, it is both fair and reasonable to require that the school authorities bear the burden of showing that their actions as to other segregated schools within the system were not also motivated by segregative intent.

In discharging that burden, it is not enough, of course, that the school authorities rely upon some allegedly logical, racially neutral explanation for their actions. Their burden is to adduce proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions. The courts below attributed much significance to the fact that many of the45 Board’s actions in the core city area antedated our decision in Brown. We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remoteness in time certainly does not make those actions any less “intentional.”

This is not to say, however, that the prima facie case may not be met by evidence supporting a finding that a lesser degree of segregated schooling in the core city area would not have resulted even if the Board had not acted as it did. In Swann, we suggested that at some point in time the relationship between past segregative acts and present segregation may become so attenuated as to be incapable of supporting a finding of de jure segregation warranting judicial intervention. We made it clear, however, that a connection between past segregative acts and present segregation may be present even when not apparent and that close examination is required before concluding that the connection does not exist. Intentional school segregation in the past may have been a factor in creating a natural environment for the growth of further segregation. Thus, if respondent School Board cannot disprove segregative intent, it can rebut the prima facie case only by showing that its past segregative acts did not create or contribute to the current segregated condition of the core city schools.

In summary, the District Court on remand will afford the School Board the opportunity to prove its contention that the [northeastern part of the district] is a separate, identifiable and unrelated section of the school district that should be treated as isolated from the rest of the district. If respondent School Board fails to prove that contention, the District Court, will determine whether respondent School Board’s conduct over almost a decade after 1960 in carrying out a policy of deliberate racial segregation in the [northeastern] schools constitutes the entire school system a dual school system. If the District Court determines that the Denver school system is a dual school system, respondent School Board has the affirmative duty to desegregate the entire system “root and branch.” If the District Court determines, however, that the Denver school system is not a dual school system, the court, will afford respondent School Board the opportunity to rebut petitioners’ prima facie case of intentional segregation in the core city schools raised by the finding of intentional segregation in the [other] schools. There, the Board’s burden is to show that its policies and practices with respect to schoolsite location, school size, school renovations and additions, student-attendance zones, student assignment and transfer options, mobile classroom units, transportation of students, assignment of faculty and staff, etc., considered together and premised on the Board’s so-called “neighborhood school” concept, either were not taken in effectuation of a policy to create or maintain segregation in the core city schools, or, if unsuccessful in that effort, were not factors in causing the existing condition of segregation in these schools. Considerations of “fairness” and “policy” demand no less in light of the Board’s intentionally segregative actions. If respondent Board fails to rebut46 petitioners’ prima facie case, the District Court must, as in the case of Park Hill, decree all-out desegregation of the core city schools.

Justice Powell, concurring in part and dissenting in part.

The great contribution of Brown I was its holding in unmistakable terms that the Fourteenth Amendment forbids state-compelled or state-authorized segregation of public schools. [T]he holding in Brown I was essentially negative: It was impermissible under the Constitution for the States to force children to attend segregated schools. The forbidden action was de jure, and the opinion in Brown I was construed—for some years—as requiring only state neutrality, allowing “freedom of choice” as to schools to be attended so long that the choice was genuinely free of official restraint.

But the doctrine of Brown I did not retain its original meaning. In a series of decisions extending from 1954 to 1971 the concept of state neutrality was transformed into the present constitutional doctrine requiring affirmative state action to desegregate school systems. The keystone case was Green v. County School Board, where school boards were declared to have “the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” [Thus, the Court in Swann made clear that this duty applied in all contexts, including large cities, and regardless of whether the segregation was a result of state-imposed de jure school segregation or private residential segregation.]

I would not perpetuate the de jure/de facto distinction nor would I leave to petitioners the initial tortuous effort of identifying “segregative acts” and deducing “segregative intent.” I would hold, quite simply, that where segregated public schools exist within a school district to a substantial degree, there is a prima facie case that the duly constituted public authorities are sufficiently responsible to warrant imposing upon them a nationally applicable burden to demonstrate they nevertheless are operating a genuinely integrated school system.

Public schools are creatures of the State, and whether the segregation is state-created or state-assisted or merely state-perpetuated should be irrelevant to constitutional principle. It makes little sense to find prima facie violations and the consequent affirmative duty to desegregate solely in those States with state-imposed segregation at the time of the Brown decision. The history of state-imposed segregation is more widespread in our country than the de jure/de facto distinction has traditionally cared to recognize.

NOTES AND QUESTIONS

1. Keyes was the first case to address school desegregation in a northern school. Southern schools were segregated by law, but northern schools were generally segregated in practice, with no explicit legal mandate. The debate between the majority opinion and the concurrences is largely over whether this matters and what standard should apply. The majority holds that, in a school system with no statutory requirement of segregation, a plaintiff must47 demonstrate that the state or school district intentionally segregated its schools. Thus, the court distinguishes between statutorily dual school systems and those with no such history. Is this distinction sound? Is requiring plaintiffs to demonstrate intentional discrimination in school systems that lack a history of statutorily dual schools consistent with Brown and other precedent, or can Brown and its progeny be read to prohibit all forms of school segregation?

The Fifth Circuit in Cisneros v. Corpus Christi Independent School District, 467 F.2d 142 (5th Cir. 1972), reasoned that, “regardless of motive, the children that suffer from segregation suffer the same deprivation of educational opportunity that Brown condemns.” Id. at 150. Thus, “discriminatory motive and purpose…are not necessary ingredients of constitutional violations in the field of public education.” Id. at 149. Frank Goodman wrote that, although “Brown left the legal issue of de facto segregation undecided, it may have gone far toward foreclosing a critical factual issue. In finding that ‘[s]eparated educational facilities are inherently unequal’ and separation of the races in school ‘has a detrimental effect upon the colored children,’ the Court may have supplied the central empirical premise for the argument that de facto segregation amounts to a constitutional denial of equal educational opportunity.” Frank Goodman, De Facto School Segregation: A Constitutional and Empirical Analysis, 60 Cal. L. Rev. 275, 278 (1972).

2. In the absence of a statute, how can a plaintiff establish intentional segregation? What sorts of factors do you think are relevant?

3. The Court’s decision in Keyes both hurt and helped plaintiffs. The requirement of demonstrating intentional segregation placed a significant burden on those who challenge segregation in many nonsouthern schools (and eventually became the basis for limiting and bringing desegregation orders to an end across the nation), but the Court in Keyes adopted an evidentiary device, or presumption, to assist plaintiffs who overcome this initial burden. What is the justification for this presumption? How does this presumption work? What must a school district show to overcome the presumption? Does the passage of time bear any consequence on whether the presumption applies or the defendant has rebutted it?

4. Presumptions are particularly powerful devices. They require a court to make certain factual findings even in the absence of evidence. Of course, the Court in Keyes does not assume intentional segregation in the first instance, but once intentional segregation is established in some substantial portion of the schools, other segregation is presumed to be intentional as well. Courts apply the presumption in statutory dual school districts as well. But there, the presumption can be even more powerful. The history of statutory segregation alone justifies the application of the presumption. Courts have used it to presume that various forms of inequity are the result of past segregation or discrimination, including racial disparities in the Green factors (student assignments, staff and faculty, transportation, extracurricular activities, and facilities). See, e.g., NAACP, Jacksonville Branch v. Duval Cnty. Sch., 273 F.3d 960, 967 (11th Cir. 2001). The Green factors, however, are not exclusive. Courts have also looked at student discipline, ability grouping, special education, and other areas for disparities, and applied the presumption when48 disparities exist. Thomas Cnty. Branch of NAACP v. City of Thomasville Sch. Dist., 299 F. Supp. 2d 1340, 1366 (M.D. Ga. 2004).

5. The Court in Washington v. Davis, 426 U.S. 229 (1976), relying on Keyes, adopted the intentional discrimination standard for discrimination claims under the Fifth Amendment. In Village of Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252 (1977), the Court adopted the same standard for all race discrimination claims under the Fourteenth Amendment. The intentional discrimination standard has dominated ever since and has become the primary standard for adjudicating almost all forms of discrimination, whether it be based on race, gender, disability, or some other basis (although there are significant exceptions in some statutory claims). Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 285 (1997).

6. Interestingly, the Court almost reached a different result in Keyes regarding intentional discrimination. The Court’s final opinion includes Justice Powell’s powerful critique of the standard. According to Powell’s biographer, four other justices would have agreed to reject a distinction between de jure and de facto segregation. A disagreement, however, over the remedy and the way that Powell framed his opinion prevented the alliance. John C. Jefferies, Jr., Justice Lewis F. Powell, Jr.: A Biography 302-306 (1994). Given what appeared to be a strong desire to shift the general course of antidiscrimination law in Washington v. Davis and Arlington Heights v. Metropolitan Housing Development, the Court most likely would have adopted the intentional discrimination standard at some point regardless of the opinion in Keyes. But the desire to change the course of desegregation in education was not as clear in Keyes. One could imagine that desegregation might have proceeded under its own standards, which were already specialized.

PROBLEM

Halifax Public School District includes both a relatively densely populated city and the surrounding suburbs of the county. Most African American and Latino families in the district live in the city. Several whites live in the city as well, but most send their children to private schools. The county suburbs are sparsely populated and predominantly white. Overall, 70 percent of the students enrolled in the district are white and 30 percent are minority.

Until 1985, the schools in the district were racially balanced, but when court-ordered desegregation ended, the district began assigning students to schools based on proximity, which produces significant racial imbalance in the schools. Minority families are upset that their inner city schools are predominantly minority, predominantly poor, and have lower achievement scores than the suburban schools. They also complain of larger class sizes and less qualified teachers. White suburban families complain that there are not enough schools in the suburbs, which makes bus rides and commutes too long.

Intending to make changes to its assignment policy and/or build new schools soon, the district recently held a series of community meetings. The first meeting was to discuss potential locations for two new schools. The meeting49 was held in the suburbs. The attendees were more than 90 percent white. The strong preference of the parents who spoke was to have both new schools built in the suburbs. A second meeting in the suburbs generated similar results. A third hearing to discuss the student assignment plan was held at the district’s central office in the city. The attendees were approximately 60 percent white and 40 percent minority. Most white parents who spoke expressed a strong preference for maintaining a neighborhood student assignment plan, while minority parents advocated making alternations to attendance zones to better integrate the schools. A few minority parents attempted to revisit the issue of school construction, but the district cut off discussion, indicating that the topic was fully discussed at prior meetings.

Two months later, the district announced it would build two new schools in the suburbs and adopted a transfer plan that would allow a student to transfer out of any neighborhood school that was low performing as long as sufficient space was available to accommodate the student elsewhere.

Members of the African American community want to challenge the district’s policy. Advise them on the viability of doing so.

b. Intradistrict versus Interdistrict Segregation

The initial impact of Keyes was significant, but not enormous. The fact that schools were segregated by law in the South, and so many northern districts had acted with obvious racial motivations in the past, meant that most plaintiffs in the 1970s were still in a position to establish the existence of unconstitutional segregation. But intentional discrimination as a requirement clearly marked the scope of permissible desegregation, which the Court shortly thereafter used to drastically halt the expansion of desegregation.

Prior to Milliken v. Bradley, all of the desegregation cases that had come to the Court had involved segregation within individual school districts. Some of the districts were small or rural. Others like Swann v. Charlotte-Mecklenburg Board of Education involved large school districts encompassing nearly the entire metropolitan area. The existence of a single school district responsible for all of a region’s or county’s schools makes meaningful desegregation possible. First, the district’s student population tends to be more racially diverse. Second, there is no other school district to which whites might easily flee to avoid desegregation. Third, the district cannot easily blame other factors or actors for the segregation in their schools, nor can they easily assert that integration is impossible.

Many metropolitan areas, particularly in the north, do not follow this norm. Multiple school districts may exist in a single metropolitan area, and the individual districts may be racially monolithic or isolated. Charles T. Clotfelter, After Brown: The Rise and Retreat of School Desegregation 71 (2004) (estimating that 69 percent of segregation in metropolitan areas is due to segregation between districts). Thus, meaningful desegregation cannot occur within individual districts, and meaningful metropolitan desegregation requires desegregation across district lines. Prior to Milliken, some advocates and courts had assumed that metropolitan areas could be desegregated in a manner similar50 to Swann, with the only difference being that students would be bused across school district lines. See, e.g., Bradley v. Sch. Bd. of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff’d, 412 U.S. 92 (1973) (affirmed on grounds distinct from Milliken); see also James E. Ryan, Five Miles Away, A World Apart 110-112 (2010). They did not assume that school district lines were sacrosanct.

The Court in Milliken, however, viewed each school district as an independent entity disconnected from surrounding school districts, and even the state in some respects. For the Court, the key question was the presence of intentional discrimination within individual school districts, not the feasibility of desegregation. Courts could order desegregation only in those districts that had engaged in intentional segregation and remedies for that segregation could not extend beyond the school district’s boundaries or impinge on any other school district that had not engaged in substantial intentional segregation itself.

This holding by the Court solidified an educational structure that has shaped the demographics of public schools ever since. Current segregation in public schools is largely attributable to the fact that after Milliken parents were free to exit desegregating school districts for neighboring ones with no threat of being brought back. Those parents with the least resources, however, lacked the option of leaving. The result was twofold: to make desegregation practically impossible in many places as early as 1974 and to facilitate the further fragmentation of housing markets and school districts into the haves and have-nots. The latter presents problems for both school finance and desegregation policy.

Milliken v. Bradley

418 U.S. 717 (1974)

Chief Justice Burger delivered the opinion of the Court.

We granted certiorari in these consolidated cases to determine whether a federal court may impose a multidistrict, areawide remedy to a single-district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts, absent any claim or finding that the boundary lines of any affected school district were established with the purpose of fostering racial segregation in public schools, absent any finding that the included districts committed acts which effected segregation within the other districts, and absent a meaningful opportunity for the included neighboring school districts to present evidence or be heard on the propriety of a multidistrict remedy or on the question of constitutional violations by those neighboring districts.

On September 27, 1971, [t]he District Court found that the Detroit Board of Education created and maintained optional attendance zones within Detroit neighborhoods undergoing racial transition and between high school attendance areas of opposite predominant racial compositions. These zones, the court found, [were designed to produce intentionally segregated schools. In51 addition, “the Detroit Board…bused Negro Detroit pupils to predominantly Negro schools which were beyond or away from closer white schools with available space. This practice was found to have continued in recent years despite the Detroit Board’s avowed policy, adopted in 1967, of utilizing transportation to increase desegregation.” Yet, with “one exception (necessitated by the burning of a white school), defendant Board has never bused white children to predominantly black schools,” where ample space was available. The Detroit Board of Education’s actions were no better in regard to school construction, “with the great majority of schools being built in either overwhelmingly all-Negro or all-white neighborhoods so that the new schools opened as predominantly one-race schools”].

The District Court also found that the State of Michigan had committed several constitutional violations with respect to the exercise of its general responsibility for, and supervision of, public education. [The State refused to authorize transportation funds for Detroit students until 1971, delayed a desegregation plan adopted by the Detroit School Board, and encouraged neighborhood schools and freedom of choice plans, all with the purpose of maintaining segregation.] The District Court also held that the acts of the Detroit Board of Education, as a subordinate entity of the State, were attributable to the State of Michigan, thus creating a vicarious liability on the part of the State.

[T]he District Court rejected the state defendants’ arguments that no state action caused the segregation of the Detroit schools, and the intervening suburban districts’ contention that interdistrict relief was inappropriate unless the suburban districts themselves had committed violations. The court concluded: “[I]t is proper for the court to consider metropolitan plans directed toward the desegregation of the Detroit public schools as an alternative to the present intra-city desegregation plans before it and, in the event that the court finds such intra-city plans inadequate to desegregate such schools, the court is of the opinion that it is required to consider a metropolitan remedy for desegregation.” [T]he District Court held that it “must look beyond the limits of the Detroit school district for a solution to the problem,” and that “[s]chool district lines are simply matters of political convenience and may not be used to deny constitutional rights.” [T]he District Court designated 53 of the 85 suburban school districts plus Detroit as the “desegregation area” and appointed a panel to prepare and submit “an effective desegregation plan” for the Detroit schools that would encompass the entire desegregation area.

[The Court of Appeals affirmed, holding that] “[T]he State has committed de jure acts of segregation and…the State controls the instrumentalities whose action is necessary to remedy the harmful effects of the State acts.”

Viewing the record as a whole, it seems clear that the [lower courts] shifted the primary focus from a Detroit remedy to the metropolitan area only because of their conclusion that total desegregation of Detroit would not produce the racial balance which they perceived as desirable. Both courts proceeded on an assumption that the Detroit schools could not be truly desegregated unless the52 racial composition of the student body of each school substantially reflected the racial composition of the population of the metropolitan area as a whole. The metropolitan area was then defined as Detroit plus 53 of the outlying school districts.

Here the District Court’s approach to what constituted “actual desegregation” raises the fundamental question…as to the circumstances in which a federal court may order desegregation relief that embraces more than a single school district. The court’s analytical starting point was its conclusion that school district lines are no more than arbitrary lines on a map drawn “for political convenience.” Boundary lines may be bridged where there has been a constitutional violation calling for interdistrict relief, but the notion that school district lines may be casually ignored or treated as a mere administrative convenience is contrary to the history of public education in our country. No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process. Thus, in San Antonio Indep. Sch. Dist. v. Rodriguez (1973), we observed that local control over the educational process affords citizens an opportunity to participate in decision making, permits the structuring of school programs to fit local needs, and encourages “experimentation, innovation, and a healthy competition for educational excellence.”

The Michigan educational structure involved in this case, in common with most States, provides for a large measure of local control, and a review of the scope and character of these local powers indicates the extent to which the interdistrict remedy approved by the two courts could disrupt and alter the structure of public education in Michigan. The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district. Entirely apart from the logistical and other serious problems attending large-scale transportation of students, the consolidation would give rise to an array of other problems in financing and operating this new school system.

It may be suggested that all of these vital operational problems are yet to be resolved by the District Court, and that this is the purpose of the Court of Appeals’ proposed remand. But it is obvious from the scope of the interdistrict remedy itself that absent a complete restructuring of the laws of Michigan relating to school districts the District Court will become first, a de facto “legislative authority” to resolve these complex questions, and then the “school superintendent” for the entire area. This is a task which few, if any, judges are qualified to perform and one which would deprive the people of control of schools through their elected representatives.

Of course, no state law is above the Constitution. School district lines and the present laws with respect to local control, are not sacrosanct and if they conflict with the Fourteenth Amendment federal courts have a duty to prescribe appropriate remedies. But our prior holdings have been confined to violations and remedies within a single school district. We therefore turn to address, for the first time, the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district.

The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.

The record before us, voluminous as it is, contains evidence of de jure segregated conditions only in the Detroit schools; indeed, that was the theory on which the litigation was initially based and on which the District Court took evidence. With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.

In dissent, Mr. Justice White and Mr. Justice Marshall undertake to demonstrate that agencies having statewide authority participated in maintaining the dual school system found to exist in Detroit. They are apparently of the view that once such participation is shown, the District Court should have a relatively free hand to reconstruct school districts outside of Detroit in fashioning relief. Our assumption, arguendo, that state agencies did participate in the maintenance of the Detroit system, should make it clear that it is not on this point that we part company. The difference between us arises instead from established doctrine laid down by our cases. Brown, Green, Swann, United States v. Scotland Neck Bd. of Educ., 407 U.S. 484 (1972), and Wright v. Council of the City of Emporia, 407 U.S. 451 (1972), each addressed the issue of constitutional wrong in terms of an established geographic and administrative school system populated by both Negro and white children. In such a context, terms such as “unitary” and “dual” systems, and “racially identifiable schools,” have meaning, and the necessary federal authority to remedy the constitutional wrong is firmly established. But the remedy is necessarily designed, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct. Disparate treatment of white and Negro students occurred within the Detroit school system, and not elsewhere, and on this record the remedy must be limited to that system.

III

We recognize that the six-volume record presently under consideration contains language and some specific incidental findings thought by the District Court to afford a basis for interdistrict relief. However, these comparatively isolated findings and brief comments concern only one possible interdistrict violation and are found in the context of a proceeding that, as the District Court conceded, included no proof of segregation practiced by any of the 85 suburban school districts surrounding Detroit. [The sole violation was limited to a contract between a suburban district and Detroit, whereby African American high school students in that suburban district would be sent to a Detroit High School. While the Court of Appeals found that this agreement occurred with the tacit or express approval of the state, an “isolated instance affecting two of the school districts would not justify the broad metropolitanwide remedy contemplated by the District Court and approved by the Court of Appeals, particularly since it embraced potentially 52 districts having no responsibility for the arrangement and involved 503,000 pupils in addition to Detroit’s 276,000 students.” Likewise, the state’s action to “rescind Detroit’s voluntary desegregation plan” and “to supervise schoolsite selection and to approve building construction” may cause segregation within Detroit city schools, the evidence does not establish it caused segregation outside of Detroit.]

We conclude that the relief ordered by the District Court and affirmed by the Court of Appeals was based upon an erroneous standard and was unsupported by record evidence that acts of the outlying districts effected the discrimination found to exist in the schools of Detroit. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded.

Justice Douglas, dissenting.

Here the Michigan educational system is unitary, maintained and supported by the legislature and under the general supervision of the State Board of Education. The State controls the boundaries of school districts. The State supervises schoolsite selection. The construction is done through municipal bonds approved by several state agencies. Education in Michigan is a state project with very little completely local control, except that the schools are financed locally, not on a statewide basis. Indeed the proposal to put school funding in Michigan on a statewide basis was defeated at the polls in November 1972. Yet the school districts by state law are agencies of the State. State action is indeed challenged as violating the Equal Protection Clause. Whatever the reach of that claim may be, it certainly is aimed at discrimination based on race.

Justice Marshall, with whom Justice Douglas, Justice Brennan, and Justice White join, dissenting.

After 20 years of small, often difficult steps toward [remedying decades of segregation], the Court today takes a giant step backwards. Notwithstanding a55 record showing widespread and pervasive racial segregation in the educational system provided by the State of Michigan for children in Detroit, this Court holds that the District Court was powerless to require the State to remedy its constitutional violation in any meaningful fashion. Ironically purporting to base its result on the principle that the scope of the remedy in a desegregation case should be determined by the nature and the extent of the constitutional violation, the Court’s answer is to provide no remedy at all for the violation proved in this case, thereby guaranteeing that Negro children in Detroit will receive the same separate and inherently unequal education in the future as they have been unconstitutionally afforded in the past.

Our precedents, in my view, firmly establish that where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination and to achieve the greatest possible degree of actual desegregation. [T]his duty cannot be fulfilled unless the State of Michigan involves outlying metropolitan area school districts in its desegregation remedy. Furthermore, I perceive no basis either in law or in the practicalities of the situation justifying the State’s interposition of school district boundaries as absolute barriers to the implementation of an effective desegregation remedy.

The rights at issue in this case are too fundamental to be abridged on grounds as superficial as those relied on by the majority today. We deal here with the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our Nation, I fear, will be ill served by the Court’s refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together.

The District Court’s consideration of this case began with its finding, which the majority accepts, that the State of Michigan, through its instrumentality, the Detroit Board of Education, engaged in widespread purposeful acts of racial segregation in the Detroit School District. Without belaboring the details, it is sufficient to note that the various techniques used in Detroit were typical of methods employed to segregate students by race in areas where no statutory dual system of education has existed. Exacerbating the effects of extensive residential segregation between Negroes and whites, the school board consciously drew attendance zones along lines which maximized the segregation of the races in schools as well. Optional attendance zones were created for neighborhoods undergoing racial transition so as to allow whites in these areas to escape integration. Negro students in areas with overcrowded schools were transported past or away from closer white schools with available space to more distant Negro schools. Grade structures and feeder-school patterns were created and maintained in a manner which had the foreseeable and actual effect of keeping Negro and white pupils in separate schools. Schools were also constructed in locations56 and in sizes which ensured that they would open with predominantly one-race student bodies. In sum, the evidence adduced below showed that Negro children had been intentionally confined to an expanding core of virtually all-Negro schools immediately surrounded by a receding band of all-white schools.

What we confront here is “a systematic program of segregation affecting a substantial portion of the students, schools…and facilities within the school system.…” The constitutional violation found here was not some de facto racial imbalance, but rather the purposeful, intentional, massive, de jure segregation of the Detroit city schools, which under our decision in Keyes, forms “a predicate for a finding of the existence of a dual school system,” and justifies “all-out desegregation.”

The State’s creation, through de jure acts of segregation, of a growing core of all-Negro schools inevitably acted as a magnet to attract Negroes to the areas served by such schools and to deter them from settling either in other areas of the city or in the suburbs. By the same token, the growing core of all-Negro schools inevitably helped drive whites to other areas of the city or to the suburbs.

The State must also bear part of the blame for the white flight to the suburbs which would be forthcoming from a Detroit-only decree and would render such a remedy ineffective. Having created a system where whites and Negroes were intentionally kept apart so that they could not become accustomed to learning together, the State is responsible for the fact that many whites will react to the dismantling of that segregated system by attempting to flee to the suburbs. Indeed, by limiting the District Court to a Detroit-only remedy and allowing that flight to the suburbs to succeed, the Court today allows the State to profit from its own wrong and to perpetuate for years to come the separation of the races it achieved in the past by purposeful state action.

NOTES AND QUESTIONS

1. What exactly is the constitutional violation in Milliken? Based on the Court’s previous school desegregation cases, would the integration of Detroit’s schools have flowed from the constitutional violation here? What does it mean to eliminate the vestiges of segregation: achieve desegregation, integration, or equality?

2. Why does the majority find that a remedy including both the urban and suburban school districts is beyond the Court’s power? What did the holdings in Green, Swann, and Keyes suggest about the Court’s understanding of the scope of remedial power?

3. A change in the composition of the Supreme Court had occurred between Green and Milliken, which seemingly caused a shift in the values and concerns with which the Court approached desegregation. Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court 260-268 (1979). What do you see as being the Court’s primary concerns in Milliken? Do those concerns, rather than doctrine, explain the decision, or do those concerns simply coincide with and bolster the Court’s doctrinal stance?

4. In what ways was the plaintiffs’ evidence insufficient to justify an interdistrict remedy? What must future plaintiffs demonstrate to justify an interdistrict desegregation decree? If a plaintiff can establish a substantial interdistrict violation, how broad of an interdistrict remedy could a court order?

5. The majority and dissenting opinions do not necessarily disagree over the facts regarding the state’s role in segregation, but rather disagree as to the legal effect of the facts. Whose interpretation is the most sensible? Are school district boundaries “simply matters of political convenience” or something more important? How would an interdistrict desegregation plan interfere with local control? Is this interference warranted?

The state’s control over education has varied significantly over time. In many states, legislatures mandated school segregation during the late nineteenth and early twentieth centuries and, on this basis, have been included as defendants in desegregation suits, often bearing most of the cost of a local school district’s desegregation plan. See, e.g., Missouri v. Jenkins, 515 U.S. 70 (1995); United States v. Georgia, 171 F.3d 1344, 1345-1346 (11th Cir. 1999). However, states have traditionally exercised little control over local policy and the day-to-day education of students. With changes to school finance structures over the past four decades and standards-based reform starting in the 1980s, the role of the state has slowly changed. In many instances, states now supply well over half of school districts’ budgets, set standards for the hiring of teachers, and mandate curriculum. Derek W. Black, Unlocking the Power of State Constitutions with Equal Protection: The First Step Toward Education as a Federally Protected Right, 51 Wm. & Mary L. Rev. 1343, 1399-1405 (2010). Thus, the Court was likely accurate in its assessment of the structure of education at the time of Milliken, but it does not automatically follow that Michigan’s situation was distinct from other states or that it justified the limitation on an interdistrict remedy.

6. Justice Marshall argues that the actions of school districts and the state are a cause of the residential segregation, which itself is a primary cause of school segregation. Similarly, scholars and advocates argue that school segregation cannot be entirely resolved without housing policies that address discrimination and segregation in that market. Michelle Adams, Radical Integration, 94 Cal. L. Rev. 261, 279-280 (2006); Nancy A. Denton, The Persistence of Segregation: Links Between Residential Segregation and School Segregation, 80 Minn. L. Rev. 795, 812-822 (1996); john a. powell, Living and Learning: Linking Housing and Education, 80 Minn. L. Rev. 749, 755-756 (1996). That the two are related and have reciprocal effects on one another is generally accepted. The point of dispute is the extent to which schools can be held responsible for private housing choices. The problem is one of actual and proximate cause. How strong should the causal connection be to justify holding schools responsible? What role, if any, do you think the history of school segregation plays in consumers’ housing decisions? Is school segregation a but-for cause or substantial factor in housing segregation? Some scholars argue that not only did schools physically separate students by race, but they also taught students values about race that conditioned them to exercise race preferences in their decision making. Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?, 78 Cornell L. Rev. 1, 11 (1992).

7. Detroit city schools were not entirely minority. About a third of the students in the district were white. Milliken, 418 U.S. at 801 (Marshall, J., dissenting). The lower court’s fear was that, if white students were reassigned to schools where they would become even smaller minorities, it would just lead to more whites leaving the school system. The ultimate result would be a system where all of the schools were 75 to 90 percent minority. Id. The movement of whites out of schools and districts that are in the process of desegregating is often termed “white flight.” Should courts take the potential for white flight into account in implementing remedies? If so, is the practical effect to assign disproportionate value to the interests of whites? If not, is the practical effect to simply create more one-race minority schools than would otherwise exist? Are the schools, the state, and/or the courts in any way responsible for white flight?

Some courts have relied on the potential of white flight as a basis to limit the scope of desegregation. When choosing between white flight that might result in a one-race school district and a plan that is likely to retain whites in the district but leave schools within it imbalanced, some courts have opted for the latter. See, e.g., Bradley v. Milliken, 540 F.2d 229, 239 (6th Cir. 1976); Mapp v. Bd. of Educ., 525 F.2d 169 (6th Cir. 1975); Crawford v. Los Angeles Bd. of Educ., 551 P.2d 28, 47 (Cal. 1976). Others have ordered desegregation plans even though they would likely result in one-race schools. Lee v. Macon Cnty. Bd. of Educ., 465 F.2d 369, 370 (5th Cir. 1972).

8. In retrospect, the result in Milliken may appear to be a foregone conclusion, but at the time it was not. As noted in the introduction to Milliken, both the Sixth Circuit and Fourth Circuit had authorized interdistrict remedies without premising them on an interdistrict violation. Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973); Bradley v. Sch. Bd. of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972).

c. Demographic Shifts

After the Court’s holding in Milliken, desegregation was limited almost entirely to within individual districts. In few rare instances, plaintiffs were able to secure interdistrict relief, but even then the remedies did not include metropolitan-wide desegregation of the sort contemplated in Milliken. Rather, the remedies were generally limited to interdistrict transfer programs or injunctions against neighboring districts that otherwise might receive transfer students who were fleeing from desegregation in their home district. United States v. Bd. of Sch. Comm’rs of City of Indianapolis, 637 F.2d 1101, 1112-1114 (7th Cir. 1980); Lee v. Eufaula City Bd. of Educ., 573 F.2d 229, 233 n.10 (5th Cir. 1978); see also Evans v. Buchanan, 393 F. Supp. 428 (D. Del. 1975). In a series of cases following Milliken, the Court began to limit intradistrict desegregation as well. In Pasadena Board of Education v. Spangler, 427 U.S. 424 (1976), the Court held that a district court lacked the authority to readjust school assignments annually so as to maintain racial balance, reasoning that yearly fluctuations in school populations are a result of demographic shifts rather than school policy. The Court also indicated that once the segregation attributable to the district’s actions had been remedied,59 court supervision should end. Whereas prior intradistrict desegregation cases had emphasized the affirmative desegregative obligation of districts and the wide expanse of district courts’ authority in enforcing this obligation, Pasadena emphasized the limits of school districts’ obligations and courts’ authority.

The opinion in Pasadena, however, did not disturb the basic doctrines of desegregation. Its focus was directed more toward micro-supervision of desegregation. But the next year in Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977), the Court spoke to the core of desegregation doctrine, the Keyes presumption in particular. In Dayton, the Court found the district court had failed to justify a system-wide desegregation remedy with evidence of a system-wide violation. The Court remanded with instructions that the district court determine the incremental effects of past segregation on current segregation and limit its order to remedying those effects. While not overruling Keyes, the requirement of incremental effects represented a different standard and the Court’s reluctance to assume that system-wide segregation is causally connected to proven intentional segregation. Thus, the Court placed the burden of proving the incremental effect of past discrimination on plaintiffs rather than requiring defendants to rebut the connection. Subsequent courts, however, narrowed interpreted this holding, treating the incremental effects requirement as limited to the unusual situation where plaintiffs demonstrate intentional segregation, but not substantial segregation.

Having firmly established that only de jure and intentional segregation warranted judicial remedies, that interdistrict segregation was largely beyond judicial remedy, and that lower courts should refrain from strict control of districts and move toward the end of judicial supervision, the Court did not announce any significant decisions in the 1980s. It left matters largely to the lower courts. But in the 1990s, the Court announced two significant cases that signaled the end of intradistrict desegregation in most districts, and thus desegregation in general. In Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991), and Freeman v. Pitts, 503 U.S. 467 (1992), the Court focused on the passage of time since the end of de jure segregation, as well as the length of time that school districts had been under court supervision, in suggesting that desegregation was in its final stages.

By the 1990s, some lower courts were justifying the continuance of desegregation decrees because, in the absence of such decrees, schools would quickly resegregate. The Supreme Court in Dowell paid no attention to resegregation and instead focused on returning control of school districts to local authorities. The Court held that the test for whether a district had reached “unitary status” was not whether the district would remain integrated in the future, but whether “the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable.” 498 U.S. at 249-250. If a lower court finds that a school district has reached its integrative goals and maintained them for “a period of years,” there is no basis to retain supervision. The Court further emphasized that a district’s good faith compliance offers reasonable assurance that it will not take discriminatory action in the future and that any resegregation would not be of its doing. Id. at 249.

The Court in Dowell articulated the generally applicable standard for assessing unitary status and emphasized courts should return control to local districts, but the facts of Dowell potentially limited its immediate impact. In Dowell, the school district had achieved racial balance in its schools a decade before the case came to the Court. On this basis, the district court had declared it unitary in 1977, but had refrained from formally dissolving its consent decree and supervision. Id. at 246. In contrast, many other school districts had never achieved lasting racial balance and were still in the midst of carrying out consent decrees that defendants and plaintiffs continued to vigorously contest. Thus, in two important respects, Dowell’s push for the end of court supervision was distinguishable.

The Court’s decision in Freeman, however, squarely addressed the prevailing circumstances in most districts and announced two principles that would hasten the end of court supervision, regardless of the extent of desegregation achieved or districts’ efforts toward it. First, the Court held that school districts have no obligation to remedy segregation that is attributable to demographic shifts and that the failure to achieve racial balance or integration is not by itself a basis for ordering additional student assignment remedies. Because strictly separating segregation caused by discrimination from segregation caused by demographic shifts is virtually impossible, the Court effectively offered districts an affirmative defense, which is readily available to almost all districts given that demographic shifts inevitably occur over time. Second, the Court held that, even if a district has not eliminated the vestiges of discrimination in all the aspects of its operations or Green factors, lower courts should grant districts partial unitary status in regard to those areas where discrimination has been eliminated.

Freeman v. Pitts

503 U.S. 467 (1992)

Justice Kennedy delivered the opinion of the Court.

[“DeKalb County, Georgia, is a major suburban area of Atlanta. This case involves a court-ordered desegregation decree for the DeKalb County School System (DCSS).” DCSS did not develop its first real desegregation plan until it was sued in the late 1960s. In June 1969, the district court approved that plan in a consent order.] The order abolished the freedom of choice plan and adopted a neighborhood school attendance plan. Under the plan all of the former de jure black schools were closed, and their students were reassigned among the remaining neighborhood schools. The District Court retained jurisdiction.

Between 1969 and 1986, respondents sought only infrequent and limited judicial intervention into the affairs of DCSS. In 1986, petitioners filed a motion for declaration that the school system had achieved unitary status. The District61 Court approached the question by asking whether DCSS was unitary with respect to each of the factors identified in Green [v. New Kent Cnty]. The court considered an additional factor that is not named in Green: the quality of education being offered to the white and black student populations. It found that DCSS is a unitary system with regard to student assignments, transportation, physical facilities, and extracurricular activities, and ruled that it would order no further relief in those areas. The District Court stopped short of dismissing the case, however, because it found that DCSS was not unitary in every respect. The court said that vestiges of the dual system remain in the areas of teacher and principal assignments, resource allocation, and quality of education. DCSS was ordered to take measures to address the remaining problems.

In the extensive record that comprises this case, one fact predominates: Remarkable changes in the racial composition of the county presented DCSS and the District Court with a student population in 1986 far different from the one they set out to integrate in 1969. Between 1950 and 1985, DeKalb County grew from 70,000 to 450,000 in total population, but most of the gross increase in student enrollment had occurred by 1969, the relevant starting date for our purposes. Although the public school population experienced only modest changes between 1969 and 1986 (remaining in the low 70,000’s), a striking change occurred in the racial proportions of the student population. The school system that the District Court ordered desegregated in 1969 had 5.6% black students; by 1986 the percentage of black students was 47%.

To compound the difficulty of working with these radical demographic changes, the northern and southern parts of the county experienced much different growth patterns. The District Court found that “[a]s the result of these demographic shifts, the population of the northern half of DeKalb County is now predominantly white and the southern half of DeKalb County is predominantly black.” During the relevant period, the black population in the southern portion of the county experienced tremendous growth while the white population did not, and the white population in the northern part of the county experienced tremendous growth while the black population did not.

Concerned with racial imbalance in the various schools of the district, respondents presented evidence that during the 1986-1987 school year DCSS had the following features: (1) 47% of the students attending DCSS were black; (2) 50% of the black students attended schools that were over 90% black; (3) 62% of all black students attended schools that had more than 20% more blacks than the system-wide average; (4) 27% of white students attended schools that were more than 90% white; (5) 59% of the white students attended schools that had more than 20% more whites than the systemwide average; (6) of the 22 DCSS high schools, five had student populations that were more than 90% black, while five other schools had student populations that were more than 80% white; and (7) of the 74 elementary schools in DCSS, 18 are over 90% black, while 10 are over 90% white.

Respondents argued in the District Court that this racial imbalance in student assignment was a vestige of the dual system, rather than a product of independent demographic forces. [R]espondents contended that DCSS had not used all available desegregative tools in order to achieve racial balancing. Respondents pointed to the following alleged shortcomings in DCSS’ desegregative efforts: (1) DCSS did not break the county into subdistricts and racially balance each subdistrict; (2) DCSS failed to expend sufficient funds for minority learning opportunities; (3) DCSS did not establish community advisory organizations; (4) DCSS did not make full use of the freedom of choice plan; (5) DCSS did not cluster schools, that is, it did not create schools for separate grade levels which could be used to establish a feeder pattern; (6) DCSS did not institute its magnet school program as early as it might have; and (7) DCSS did not use busing to facilitate urban to suburban exchanges.

[T]he District Court examined the interaction between DCSS policy and demographic shifts in DeKalb County. The District Court noted that DCSS had taken specific steps to combat the effects of demographics on the racial mix of the schools[, including making 170 attendance zone changes, starting a majority to minority transfer program, instituting a magnet school program, and operating an integrated experience program. It found that the district had accomplished the maximum practical desegregation and that additional desegregative techniques would have had little effect. Thus, no constitutional violation existed in student assignments.]

[T]he District Court next considered the other Green factors, [finding that DCSS was not yet unitary in regard to teachers and principals or the quality of education offered across its schools].

Two principal questions are presented. The first is whether a district court may relinquish its supervision and control over those aspects of a school system in which there has been compliance with a desegregation decree if other aspects of the system remain in noncompliance. As we answer this question in the affirmative, the second question is whether the Court of Appeals erred in reversing the District Court’s order providing for incremental withdrawal of supervision in all the circumstances of this case.

The concept of unitariness has been a helpful one in defining the scope of the district courts’ authority, for it conveys the central idea that a school district that was once a dual system must be examined in all of its facets, both when a remedy is ordered and in the later phases of desegregation when the question is whether the district courts’ remedial control ought to be modified, lessened, or withdrawn. But, as we explained last Term in Bd. of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237 (1991), the term “unitary” is not a precise concept: “[I]t is a mistake to treat words such as ‘dual’ and ‘unitary’ as if they were actually found in the Constitution.…Courts have used the terms ‘dual’ to63 denote a school system which has engaged in intentional segregation of students by race, and ‘unitary’ to describe a school system which has been brought into compliance with the command of the Constitution.” Id. at 245-46. The term “unitary” does not confine the discretion and authority of the District Court in a way that departs from traditional equitable principles.

That the term “unitary” does not have fixed meaning is not inconsistent with the principles that control the exercise of equitable power. The essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action. Equitable remedies must be flexible if these underlying principles are to be enforced with fairness and precision.

Today, we make explicit that [a] federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control. This discretion derives both from the constitutional authority which justified its intervention in the first instance and its ultimate objectives in formulating the decree. The authority of the court is invoked at the outset to remedy particular constitutional violations. A remedy is justifiable only insofar as it advances the ultimate objective of alleviating the initial constitutional violation.

We have said that the court’s end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution. Partial relinquishment of judicial control, where justified by the facts of the case, can be an important and significant step in fulfilling the district court’s duty to return the operations and control of schools to local authorities. Just as a court has the obligation at the outset of a desegregation decree to structure a plan so that all available resources of the court are directed to comprehensive supervision of its decree, so too must a court provide an orderly means for withdrawing from control when it is shown that the school district has attained the requisite degree of compliance. A transition phase in which control is relinquished in a gradual way is an appropriate means to this end.

We hold that, in the course of supervising desegregation plans, federal courts have the authority to relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations. While retaining jurisdiction over the case, the court may determine that it will not order further remedies in areas where the school district is in compliance with the decree. That is to say, upon a finding that a school system subject to a court-supervised desegregation plan is in compliance in some but not all areas, the court in appropriate cases may return control to the school system in those areas where compliance has been achieved, limiting further judicial supervision to operations that are not yet in full compliance with the court decree. In particular, the district court may determine that it will not order further remedies in the area of student assignments where racial imbalance is not traceable, in a proximate way, to constitutional violations.

Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where64 supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.

In considering these factors, a court should give particular attention to the school system’s record of compliance. A school system is better positioned to demonstrate its good-faith commitment to a constitutional course of action when its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations. And, with the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, and the practicability and efficacy of various remedies can be evaluated with more precision.

In the case before us the District Court designed a comprehensive plan for desegregation of DCSS in 1969, one that included racial balance in student assignments. The desegregation decree was designed to achieve maximum practicable desegregation. Its central remedy was the closing of black schools and the reassignment of pupils to neighborhood schools, with attendance zones that achieved racial balance. The plan accomplished its objective in the first year of operation, before dramatic demographic changes altered residential patterns. For the entire 17-year period respondents raised no substantial objection to the basic student assignment system, as the parties and the District Court concentrated on other mechanisms to eliminate the de jure taint.

That there was racial imbalance in student attendance zones was not tantamount to a showing that the school district was in noncompliance with the decree or with its duties under the law. Racial balance is not to be achieved for its own sake. It is to be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors. If the unlawful de jure policy of a school system has been the cause of the racial imbalance in student attendance, that condition must be remedied. The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation.

The findings of the District Court that the population changes which occurred in DeKalb County were not caused by the policies of the school district, but rather by independent factors, are consistent with the mobility that is a distinct characteristic of our society. The effect of changing residential patterns on the racial composition of schools, though not always fortunate, is somewhat predictable. Studies show a high correlation between residential segregation and school segregation. The District Court in this case heard evidence tending to show that racially stable neighborhoods are not likely to emerge because whites prefer a racial mix of 80% white and 20% black, while blacks prefer a 50-50 mix.

Where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated. Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies.

In one sense of the term, vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State, are a stubborn fact of history. [But a]s the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system. The causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith.

We next consider whether retention of judicial control over student attendance is necessary or practicable to achieve compliance in other facets of the school system. Racial balancing in elementary and secondary school student assignments may be a legitimate remedial device to correct other fundamental inequities that were themselves caused by the constitutional violation. We have long recognized that the Green factors may be related or interdependent. Two or more Green factors may be intertwined or synergistic in their relation, so that a constitutional violation in one area cannot be eliminated unless the judicial remedy addresses other matters as well. We have observed, for example, that student segregation and faculty segregation are often related problems. As a consequence, a continuing violation in one area may need to be addressed by remedies in another.

There was no showing that racial balancing was an appropriate mechanism to cure other deficiencies in this case. It is true that the school district was not in compliance with respect to faculty assignments, but the record does not show that student reassignments would be a feasible or practicable way to remedy this defect. To the contrary, the District Court suggests that DCSS could solve the faculty assignment problem by reassigning a few teachers per school.

Justice Scalia, concurring.

Identifying and undoing the effects of some violations of the law is easy. Where, for example, a tax is found to have been unconstitutionally imposed, calculating the funds derived from that tax (which must be refunded), and distinguishing them from the funds derived from other taxes (which may be retained), is a simple matter. That is not so with respect to the effects of unconstitutionally operating a legally segregated school system; they are uncommonly difficult to identify and to separate from the effects of other causes. We have never sought to describe how one identifies a condition as the effluent of a violation, or how a “vestige” or a “remnant” of past discrimination is to be recognized. Indeed, we have not even betrayed an awareness that these tasks are considerably more difficult than calculating the amount of taxes66 unconstitutionally paid. It is time for us to abandon our studied disregard of that obvious truth and to adjust our jurisprudence to its reality.

Racially imbalanced schools are the product of a blend of public and private actions, and any assessment that they would not be segregated, or would not be as segregated, in the absence of a particular one of those factors is guesswork. It is similarly guesswork, of course, to say that they would be segregated, or would be as segregated, in the absence of one of those factors. Only in rare cases, where the racial imbalance had been temporarily corrected after the abandonment of de jure segregation, can it be asserted with any degree of confidence that the past discrimination is no longer playing a proximate role. Thus, allocation of the burden of proof foreordains the result in almost all of the “vestige of past discrimination” cases. If, as is normally the case under our equal protection jurisprudence (and in the law generally), we require the plaintiffs to establish the asserted facts entitling them to relief—that the racial imbalance they wish corrected is at least in part the vestige of an old de jure system—the plaintiffs will almost always lose. Conversely, if we alter our normal approach and require the school authorities to establish the negative—that the imbalance is not attributable to their past discrimination—the plaintiffs will almost always win.

Our post Green cases provide that, once state-enforced school segregation is shown to have existed in a jurisdiction in 1954, there arises a presumption, effectively irrebuttable (because the school district cannot prove the negative), that any current racial imbalance is the product of that violation, at least if the imbalance has continuously existed. [But] the rational basis for the extraordinary presumption of causation simply must dissipate as the de jure system and the school boards who produced it recede further into the past. We must soon revert to the ordinary principles of our law, of our democratic heritage, and of our educational tradition: that plaintiffs alleging equal protection violations must prove intent and causation and not merely the existence of racial disparity.

Justice Blackmun, with whom Justice Stevens and Justice O’Connor join, concurring in the judgment.

It is almost 38 years since this Court decided Brown v. Bd. of Educ. In those 38 years the students in DeKalb County, Ga., never have attended a desegregated school system even for one day. The majority of “black” students never have attended a school that was not disproportionately black. Ignoring this glaring dual character of the DeKalb County School System (DCSS), part “white” and part “black,” the District Court relinquished control over student assignments, finding that the school district had achieved “unitary status” in that aspect of the system. No doubt frustrated by the continued existence of duality, the Court of Appeals ordered the school district to take extraordinary measures to correct all manifestations of this racial imbalance. Both decisions, in my view, were in error, and I therefore concur in the Court’s decision to vacate the judgment and remand the case.

DCSS claims that it need not remedy the segregation in DeKalb County schools because it was caused by demographic changes for which DCSS has no responsibility. It is not enough, however, for DCSS to establish that demographics exacerbated the problem; it must prove that its own policies did not67 contribute. Such contribution can occur in at least two ways: DCSS may have contributed to the demographic changes themselves, or it may have contributed directly to the racial imbalance in the schools.

To determine DCSS’ possible role in encouraging the residential segregation, the court must examine the situation with special care. “[A] connection between past segregative acts and present segregation may be present even when not apparent and…close examination is required before concluding that the connection does not exist.” Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 211 (1973). Close examination is necessary because what might seem to be purely private preferences in housing may in fact have been created, in part, by actions of the school district.

In addition to exploring the school district’s influence on residential segregation, the District Court here should examine whether school-board actions might have contributed to school segregation. Actions taken by a school district can aggravate or eliminate school segregation independent of residential segregation. School-board policies concerning placement of new schools and closure of old schools and programs such as magnet classrooms and majority-to-minority (M-to-M) transfer policies affect the racial composition of the schools. A school district’s failure to adopt policies that effectively desegregate its schools continues the violation of the Fourteenth Amendment. See Columbus Bd. of Educ., 443 U.S. at 458-459; Dayton Bd. of Educ., 443 U.S. at 538. The Court many times has noted that a school district is not responsible for all of society’s ills, but it bears full responsibility for schools that have never been desegregated.

NOTES AND QUESTIONS

1. What changes occurred in DeKalb County following the Court’s decision in Brown and the initiation of desegregation in DeKalb County? Are these changes abnormal?

2. Do you agree that the district had eliminated the vestiges of discrimination to the extent practicable? Is there anything the district previously should have done or should be ordered to do in the future? Can a school district that is roughly half white and half minority be unitary in student assignments when many of its schools are predominantly white or minority?

3. Do schools have any legal responsibility to respond to the demographic changes that occur during the period of desegregation? Do they have a democratic, pedagogical, or ethical responsibility to respond?

4. Do districts have the burden of demonstrating that demographic shifts are not the result of past or present discrimination, or is the existence of demographic shifts itself evidence that rebuts the presumption that current school segregation is caused by discrimination? Can demographic shifts fairly be said to be an explanation for segregation when a district has failed to implement the more aggressive desegregation measures authorized in Swann? As a matter of equity, one might block such a district from raising demographic shifts as an explanation for segregation. It is only speculation to assume that a district would68 have been demographically more integrated had the district been more aggressive in implementing desegregation, but it is likewise speculative to assume things would have been no different because demographic shifts would have overwhelmed the district. Who gets the benefit of the doubt on this issue?

5. Is there any reason to think that in a district that was formerly 95 percent white that all incoming African American families would naturally move to South DeKalb and the only whites who would stay are in North DeKalb?

6. Demographic shifts exist in most school systems, creating a continual cycle of change. Assuming that a school district has achieved an appropriate level of integration in student assignments, how long should a court require the district to maintain this level of integration? The Fifth Circuit has indicated that the minimum period of time is three years. United States v. Tex. Educ. Agency, 647 F.2d 504, 508-509 (5th Cir. 1981). Suppose the schools, although racially balanced in a particular year, were moving in transition from predominantly white to predominantly black. Thus, the balance is only momentary and an incidental result of whites leaving a particular school and/or minorities newly enrolling there. Should such a district be declared unitary in student assignments?

7. Freeman v. Pitts holds that a district court can grant a school district partial unitary status when the school district has eliminated the vestiges of discrimination as to one or more Green factors but not others. What is the Court’s rationale for granting partial unitary status? When deciding whether to grant partial unitary status, what additional analysis must a district court conduct?

8. What does the Court indicate is the relevance of the passage of time since the original constitutional violation? Has the Court’s position on this issue changed since Keyes? The Keyes Court indicated the presumption was simply a matter of fairness given the difficulty of resolving the factual issues of intent and causation. With the passage of time, resolving the problem of intent and causation becomes even harder. Does this passage of time make it any less fair to give plaintiff’s the benefit of the presumption? At what point in time should the presumption no longer be warranted? If the presumption is eliminated, plaintiffs will face the same level of difficulty in establishing a connection between past and present segregation that defendants faced in disestablishing the connection. Thus, challenging present school segregation based on past acts becomes practically impossible.

PROBLEM

In 1964, plaintiffs filed suit to desegregate Muscogee County schools, which were 70 percent white and 30 percent African American. Not until after Green v. New Kent County, however, did the district court order the district to desegregate. Finally, in 1971, the school board responded by adopting a student assignment plan that reserved 70 percent of the seats in each school for whites and the other 30 percent for African Americans. Students living closest to each school were assigned there until these quotas were met, after which students were assigned to a school that was below its quota. By 1973, 57 of the district’s 64 schools were69 within 10 percent of their quota targets, meaning, for instance, that the population in the school was between 60 and 80 percent white. Five schools were within 20 percent of these quotas. The other two schools were effectively one-race schools. These numbers remained relatively constant through 1975.

Toward the end of the 1970s, the school board began reducing the number of student reassignments to meet these targets and stopped adjusting neighborhood attendance zones. In addition, some neighborhoods in the county became more racially isolated, the number of white students enrolled in the district declined, and the number of African American students increased. As a result, fewer and fewer schools fell within 10 percent of the district-wide percentage of white and African American students. By 1992, half of the schools were outside this range and one-quarter of schools were nearly one-race schools. In 1992, plaintiffs moved for an injunction and an order directing the school board to take whatever action necessary to achieve proportionate student compositions. The district responded with a motion for unitary status.

You are the district court judge and just read Freeman v. Pitts. What order would you enter in the case?

d. Quality of Education Improvements and the Achievement Gap

The Court’s opinions in Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991), and Freeman v. Pitts, 503 U.S. 467 (1992), addressed school districts’ responsibility to implement integrative student assignment policies. However, another set of school districts had given up on integrating their schools decades ago because their districts were largely or entirely nonwhite. The only way they could be integrated was through the exchange of students across district lines, which Milliken v. Bradley, 418 U.S. 717 (1974), indicated was beyond the power of district courts to order absent an interdistrict violation. In these districts, desegregation remedies took another form: quality of education improvement programs. The theory was that segregation had not only separated students by race, it had diminished the quality of education that minorities received and caused an achievement gap. Thus, improving the quality of education that minorities receive, particularly where integration was impracticable, was a sufficient and an appropriate remedy. In fact, on remand from the Court’s 1974 decision in Milliken, the district court ordered compensatory and remedial education programs, and mandated that the state share in the cost of providing them. In a second decision, the Supreme Court upheld these remedies. Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II).

Following Milliken II, lower courts ordered similarly situated school districts to do the same and frequently required the state to contribute to the cost. For this reason, school districts saw consent decrees of this sort as being in their favor and often sided with plaintiffs’ on certain issues. This reshuffling of party interests allowed many qualitative improvement programs to proceed and expand for years with no significant opposition, other than from the state. The largest qualitative education improvement program was in Kansas City, Missouri. When70 that plan came before the Supreme Court in Missouri v. Jenkins in 1995, the Court indicated that these educational improvement programs, just like integrative student assignment plans, had limits and required specific justifications.

The Court examined both the motives and evidentiary justification behind the program. First, the Court indicated that the only legitimate objective of educational improvement programs was to improve educational opportunities for students who attended formerly segregated schools or suffered from their lingering effects. Courts could not attempt to improve schools for the purpose of making them more attractive to whites living outside the district. To do so would be to achieve indirectly what the Court in Milliken held could not be achieved directly: interdistrict desegregation in the absence of an interdistrict violation. Second, courts could order only programs that were necessary to reduce the achievement gap and educational inadequacies caused by prior segregation. To the extent achievement gaps or educational inadequacies were the result of factors other than intentional discrimination by schools, they are beyond the authority of district courts to remedy.

Missouri v. Jenkins

515 U.S. 70 (1995)

Chief Justice Rehnquist delivered the opinion of the Court.

In this case, the State of Missouri has challenged the District Court’s order of salary increases for virtually all instructional and noninstructional staff within the Kansas City, Missouri, School District (KCMSD) and the District Court’s order requiring the State to continue to fund remedial “quality education” programs because student achievement levels were still “at or below national norms at many grade levels.”

In June 1985, the District Court issued its first remedial order. The District Court determined that “[s]egregation ha[d] caused a system wide reduction in student achievement in the schools of the KCMSD.” The District Court, pursuant to plans submitted by the KCMSD and the State, ordered a wide range of quality education programs for all students attending the KCMSD. First, the District Court ordered that the KCMSD be restored to an AAA classification, the highest classification awarded by the State Board of Education. Second, it ordered that the number of students per class be reduced so that the student-to-teacher ratio was below the level required for AAA standing. The District Court justified its reduction in class size as “an essential part of any plan to remedy the vestiges of segregation in the KCMSD. Reducing class size will serve to remedy the vestiges of past segregation by increasing individual attention and instruction, as well as increasing the potential for desegregative educational experiences for KCMSD students by maintaining and attracting non-minority enrollment.”

The District Court also ordered programs to expand educational opportunities for all KCMSD students: full-day kindergarten; expanded summer school; before- and after-school tutoring; and an early childhood development program. Finally, the District Court implemented a state-funded “effective schools” program that consisted of substantial yearly cash grants to each of the schools within the KCMSD. Under the “effective schools” program, the State was required to fund programs at both the 25 racially identifiable schools as well as the 43 other schools within the KCMSD.

The District Court also set out to desegregate the KCMSD but believed that “[t]o accomplish desegregation within the boundary lines of a school district whose enrollment remains 68.3% black is a difficult task.” Because it had found no interdistrict violation, the District Court could not order mandatory interdistrict redistribution of students between the KCMSD and the surrounding SSD’s. The District Court refused to order additional mandatory student reassignments because they would “increase the instability of the KCMSD and reduce the potential for desegregation.” Relying on favorable precedent from the Eighth Circuit, the District Court determined that “[a]chievement of AAA status, improvement of the quality of education being offered at the KCMSD schools, magnet schools, as well as other components of this desegregation plan can serve to maintain and hopefully attract non-minority student enrollment.”

In November 1986, the District Court approved a comprehensive magnet school and capital improvements plan to “provide a greater educational opportunity to all KCMSD students,” and [to]…draw non-minority students from the private schools who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburbs.” [The cost of the magnet school program since 1986 was “in excess of $448 million.” The cost of the capital improvements through 1990 was over $540 million. Without such improvements, the district would remain unequal to its suburban counterparts and unattractive to parents considering enrolling their children there.]

As part of its desegregation plan, the District Court has ordered salary assistance to the KCMSD. [Since 1987] the District Court has ordered salary assistance to all but three of the approximately 5,000 KCMSD employees. The total cost of this component of the desegregation remedy since 1987 is over $200 million.

Not surprisingly, the cost of this remedial plan has “far exceeded KCMSD’s budget, or for that matter, its authority to tax.” The State, through the operation of joint-and-several liability, has borne the brunt of these costs. In short, the District Court “has gone to great lengths to provide KCMSD with facilities and opportunities not available anywhere else in the country.”

III

The State argues that the order approving salary increases is beyond the District Court’s authority because it was crafted to serve an “interdistrict goal,” in spite of the fact that the constitutional violation in this case is “intradistrict” in nature. The proper response to an intradistrict violation is an intradistrict72 remedy that serves to eliminate the racial identity of the schools within the affected school district.

Here, the District Court has found, and the Court of Appeals has affirmed, that this case involved no interdistrict constitutional violation. Thus, the proper response by the District Court should have been to eliminate to the extent practicable the vestiges of prior de jure segregation within the KCMSD: a systemwide reduction in student achievement and the existence of 25 racially identifiable schools with a population of over 90% black students.

The District Court and Court of Appeals, however, have felt that because the KCMSD’s enrollment remained 68.3% black, a purely intradistrict remedy would be insufficient. But, as noted in Milliken v. Bradley I, 418 U.S. 717 (1974), we have rejected the suggestion “that schools which have a majority of Negro students are not ‘desegregated’ whatever the racial makeup of the school district’s population and however neutrally the district lines have been drawn and administered.”

Instead of seeking to remove the racial identity of the various schools within the KCMSD, the District Court has set out on a program to create a school district that was equal to or superior to the surrounding SSD’s. Its remedy has focused on “desegregative attractiveness,” coupled with “suburban comparability.” Examination of the District Court’s reliance on “desegregative attractiveness” and “suburban comparability” is instructive for our ultimate resolution of the salary-order issue.

The purpose of desegregative attractiveness has been not only to remedy the systemwide reduction in student achievement, but also to attract nonminority students not presently enrolled in the KCMSD. This remedy has included elaborate program of capital improvements, course enrichment, and extracurricular enhancement not simply in the formerly identifiable black schools, but in schools throughout the district. The District Court’s remedial orders have converted every senior high school, every middle school, and one-half of the elementary schools in the KCMSD into “magnet” schools. The District Court’s remedial order has all but made the KCMSD itself into a magnet district.

We previously have approved of intradistrict desegregation remedies involving magnet schools. Magnet schools have the advantage of encouraging voluntary movement of students within a school district in a pattern that aids desegregation on a voluntary basis, without requiring extensive busing and redrawing of district boundary lines. As a component in an intradistrict remedy, magnet schools also are attractive because they promote desegregation while limiting the withdrawal of white student enrollment that may result from mandatory student reassignment.

The District Court’s remedial plan in this case, however, is not designed solely to redistribute the students within the KCMSD in order to eliminate racially identifiable schools within the KCMSD. Instead, its purpose is to attract nonminority students from outside the KCMSD schools. But this inter district goal is beyond the scope of the intradistrict violation. In effect, the District Court has devised a remedy to accomplish indirectly what it admittedly lacks the remedial authority to mandate directly: the interdistrict transfer of students.

Nothing in Milliken I suggests that the District Court in that case could have circumvented the limits on its remedial authority by requiring the State of Michigan, a constitutional violator, to implement a magnet program designed to achieve the same interdistrict transfer of students that we held was beyond its remedial authority. Here, the District Court has done just that: created a magnet district of the KCMSD in order to serve the interdistrict goal of attracting nonminority students from the surrounding SSD’s and redistributing them within the KCMSD. The District Court’s pursuit of “desegregative attractiveness” is beyond the scope of its broad remedial authority.

[The Court followed the same logic in holding that the current district court order regarding teacher salary increases and quality of education programs was “simply too far removed from an acceptable implementation of a permissible means to remedy previous legally mandated segregation.” The Court did, however, remand on the question of] whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable. Under our precedents, the State and the KCMSD are “entitled to a rather precise statement of [their] obligations under a desegregation decree.” Although the District Court has determined that “[s]egregation has caused a system wide reduction in achievement in the schools of the KCMSD,” it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs.

Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments, so too will numerous external factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure in the remedial calculus. Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own.

Justice Thomas, concurring.

It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior. Instead of focusing on remedying the harm done to those black schoolchildren injured by segregation, the District Court here sought to convert the Kansas City, Missouri, School District (KCMSD) into a “magnet district” that would reverse the “white flight” caused by desegregation.

[T]he District Court’s imposition of liability upon the State of Missouri improperly rests upon a theory that racial imbalances are unconstitutional. That is, the court has “indulged the presumption, often irrebuttable in practice, that a presently observed [racial] imbalance has been proximately caused by intentional state action during the prior de jure era.” In effect, the court found that racial imbalances constituted an ongoing constitutional violation that continued to inflict harm on black students. This position appears to rest upon the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites.

The District Court’s willingness to adopt such stereotypes stemmed from a misreading of our earliest school desegregation case. In Brown v. Board of74 Education, the Court noted several psychological and sociological studies purporting to show that de jure segregation harmed black students by generating “a feeling of inferiority” in them. Seizing upon this passage in Brown, the District Court asserted that “forced segregation ruins attitudes and is inherently unequal.” The District Court suggested that this inequality continues in full force even after the end of de jure segregation. Thus, the District Court seemed to believe that black students in the KCMSD would continue to receive an “inferior education” despite the end of de jure segregation, as long as de facto segregation persisted. As the District Court later concluded, compensatory educational programs were necessary “as a means of remedying many of the educational problems which go hand in hand with racially isolated minority student populations.”

It is clear that the District Court misunderstood the meaning of Brown. Brown did not say that “racially isolated” schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental, truth that the government cannot discriminate among its citizens on the basis of race.

Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources—making blacks “feel” superior to whites sent to lesser schools—would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant to the question whether state actors have engaged in intentional discrimination—the critical inquiry for ascertaining violations of the Equal Protection Clause.

Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. Indeed, it may very well be that what has been true for historically black colleges is true for black middle and high schools. Despite their origins in “the shameful history of state-enforced segregation,” these institutions can be “ ‘both a source of pride to blacks who have attended them and a source of hope to black families who want the benefits of…learning for their children.’ ” Because of their “distinctive histories and traditions,” black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.

We must forever put aside the notion that simply because a school district today is black, it must be educationally inferior. Even if segregation were present, we must remember that a deserving end does not justify all possible means. The desire to reform a school district, or any other institution, cannot so captivate the judiciary that it forgets its constitutionally mandated role. Usurpation of the traditionally local control over education not only takes the judiciary beyond its proper sphere, it also deprives the States and their elected officials of their75 constitutional powers. At some point, we must recognize that the judiciary is not omniscient, and that all problems do not require a remedy of constitutional proportions.

Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

[The Court treats the remedy as an interdistrict remedy, when in fact it is not. An interdistrict remedy would entail including the suburban districts as defendants and either compelling their consolidation with KCMSD or ordering desegregative remedies on their parts. Here, the District Court did neither and, in fact, refused to implement an interdistrict remedy because there was no interdistrict violation. The absence of an interdistrict remedy, however, does not mean that the intradistrict violation did not have tangible effects outside of the district. Most notably, the segregation of KCMSD schools and the decaying state that segregation had left them in certainly could have caused white flight. In fact, “the District Court and the Court of Appeals concurred in finding that ‘the preponderance of black students in the [KCMSD] was due to the State and KCMSD’s constitutional violations, which caused white flight.…[T]he existence of segregated schools led to white flight from the KCMSD to suburban districts and to private schools.’ Jenkins v. State of Missouri, 855 F.2d 1295, 1302 (1988). While this exodus of white students would not have led to segregation within the SSD’s, which have all been run in a unitary fashion since the time of Brown v. Bd. of Educ., it clearly represented an effect spanning district borders, and one which the District Court and the Court of Appeals expressly attributed to segregation in the KCMSD.” The attempt to remedy this discriminatory effect and vestige of segregation is distinct from ordering an interdistrict remedy. Moreover, remedying the vestiges of segregation to the extent practicable is constitutionally required. And it is this issue, not an interdistrict remedy, that is before the Court.]

It is true that all parties to this case agree that it would be error to require that the students in a school district attain the national average test score as a prerequisite to a finding of partial unitary status, if only because all sorts of causes independent of the vestiges of past school segregation might stand in the way of the goal. That said, test scores will clearly be relevant in determining whether the improvement programs have cured a deficiency in student achievement to the practicable extent. The District Court has noted that while students’ scores have shown a trend of improvement, they remain at or below national norms. The significance of this fact is subject to assessment. [T]he improvement to less than the national average might reasonably be taken to show that education programs are having a good effect on student achievement, and that further improvement can be expected. On the other hand, if test-score changes were shown to have flattened out, that might suggest the impracticability of any additional remedial progress.

The other question properly before us has to do with the propriety of the District Court’s recent salary orders. While the Court suggests otherwise, the District Court did not ground its orders of salary increases solely on the goal of76 attracting students back to the KCMSD. From the start, the District Court has consistently treated salary increases as an important element in remedying the systemwide reduction in student achievement resulting from segregation in the KCMSD. As noted above, the Court does not question this remedial goal, which we expressly approved in Milliken II. The only issue, then, is whether the salary increases ordered by the District Court have been reasonably related to achieving that goal.

[Previously, teacher salaries were particularly low in the district, the return to which would lead to a “mass exodus” of competent teachers. In this respect, adequate teacher salaries are essential to the remedial goal of improving student achievement.] The Court suggests that the District Court rested its approval of salary increases only on the object of drawing students into the district’s schools. [T]o the extent that the District Court concludes on remand that its salary orders are justified by reference to the quality of education alone, nothing in the Court’s opinion precludes those orders from remaining in effect.

NOTES AND QUESTIONS

1. Given the propensity for white flight, the district court had never ordered any “integrative” remedies. What did it order instead, and which of its remedies were best suited to address the vestiges of segregation in the district?

2. One of the various remedies was the creation of magnet schools. Magnet schools focus their curriculum on a particular theme, such as fine arts, science, social studies, culinary arts, or aerospace education. Rather than neighborhood attendance zones, magnet schools draw their students from across the school district and enroll their students through some form of an admissions process. The idea is that by offering a specialized curriculum and opening the school to students from all areas, magnet schools can attract students from diverse neighborhoods and achieve integration without mandatory student reassignments. Districts have used magnet schools both as supplements to their larger mandatory desegregation plans and central components of voluntary desegregation plans. Magnet schools became widespread in the 1970s and continue today, largely through the support of the federal grants that have covered significant portions of their operating costs. Federal law defines a magnet school as “a public elementary school, public secondary school, public elementary education center, or public secondary education center that offers a special curriculum capable of attracting substantial numbers of students of different racial backgrounds.” 20 U.S.C. §7231a (2006).

3. Does the Court find a flaw in the district court’s remedies themselves, the intent behind those remedies, or both? Putting aside the overarching issue of interdistrict versus intradistrict remedies, the Court here questions whether closing the achievement gap and increasing teacher salaries are remedies for past segregation. What theory supports these remedies as responsive to segregation?

4. What must a district find to justify ordering the quality of education remedies in question? Is such proof even possible? On remand, both the plaintiffs and defendants presented extensive evidence in the attempt to delineate the various factors contributing to the racial achievement gap and its connection to past segregation. Jenkins v. Missouri, 122 F.3d 588, 598-599 (8th Cir. 1997). The defendants asserted that poverty rather than race caused the achievement gap. Id. The district court agreed that the poverty was a significant cause, but rejected the notion that it was the sole cause. Id. Rather, poverty explained or caused only two-thirds of the achievement gap. Id. As to the remaining one-third of the gap, the court relied on the plaintiffs’ evidence, which established “that about 4% to 9% of the achievement gap was explained by race” alone. Id. at 598. But another 2 to 4 percent of the gap was attributable to “teachers’ low expectations” for students attending schools that are predominantly minority. Id. Taking the high end of these ranges, the district court concluded that 13 percent of the achievement gap was attributable to race. Id.

5. The central debate in this case is whether the remedies in question are actually interdistrict remedies. If they are intradistrict, should it matter whether there are incidental interdistrict effects or the district court had interdistrict goals?

6. Justice Souter argues that a school district’s or state’s actions within a single school district have an effect on private individuals’ choices both inside and outside of the district: White parents see the segregated district as inferior and choose to send their children elsewhere, causing the district to become even more segregated and unequal. Later, when a court forces desegregation, those whites who had previously remained in the district might flee the district. How would one establish these connections? What if the only white flight that could be established was in response to desegregation? Souter suggests that the district would still be liable for this. Do you agree? If a district is liable for both the pre- and postdesegregation effects on private individuals in and outside the school district, is there any limit on how broad a desegregation remedy might be? This practical problem seems to motivate the majority in limiting the attempts to make KCMSD more attractive to whites. The result, however, is to seriously undermine KCMSD’s ability to integrate. Is there a middle ground between authorizing a potentially never-ending remedial effort to attract whites to the school system and effectively forestalling it altogether? If not, which solution is best?

7. The evidentiary presumption established in Keyes requires a court to presume that current racial imbalances in schools are the result of discrimination if either the school was formerly de jure segregated or plaintiffs establish discrimination in some other substantial portion of the school district. Does the Court’s holding in Jenkins effectively remove the benefit of this presumption for plaintiffs and place the burden on plaintiffs to establish that those imbalances and inequities—as in achievement for instance—are the result of past discrimination?

8. Is Jenkins a signal that the Supreme Court has lost faith in the efficacy and possibility of desegregation, or is the case grounded in a neutral principle of law? What would that neutral principle be?

Figure 2-1. Desegregation Synthesis and Flow Chart

e. Synthesizing Half a Century of Evolving Desegregation Precedent

The law of school desegregation is complex insofar as it has developed various rules over the course of half a century without explicitly overturning or modifying any. Understanding desegregation law and applying it to a real school district requires significant synthesis and structuring. Figure 2-1 represents one way of doing so.

PROBLEM

At the time the Supreme Court outlawed public school segregation in Brown v. Board of Education, the city of Reality, Georgia, operated a de jure segregated school system. Other than taking down “whites only” signs or regulations, the city made no changes to its school system for nearly two decades. In 1972, African American students brought suit against the school district. At the time, the district maintained five elementary schools (of which three were all white and two were all African American), two middle schools (one all white and the other all African American), and two high schools (one all white and the other all African American). The entire school system included approximately 5,000 students, 60 percent of whom were white and 40 percent of whom were African American.

At trial, evidence showed that the schools were segregated and unequal in all pertinent respects: student assignments, extracurricular opportunities, faculty, facilities, quality of instruction, and financial resources. At the end of trial, the district court ordered the school district to devise a plan to desegregate its schools immediately, which should not be limited to appease whites. The district proposed a plan that required the reassignment of students and faculty among the schools. The school asserted that the other matters would naturally take care of themselves. Relying on the good faith of Reality, the district court accepted the plan.

Over subsequent years, interest among the African American community waned in the case, and no one pressed the district for any new or continued desegregative measures or monitored its progress. No activity occurred before the district court during the late 1970s or any time during the 1980s or 1990s.

In April 2006, the city of Reality moved for unitary status, arguing that (1) it had been under order to desegregate for 34 years, (2) none of its current students had ever attended a de jure school, (3) none of the current board members had ever presided over a de jure school, (4) funding between schools was now equal, and (5) African American students’ achievement had improved significantly. Compared to 1970, the African American graduation rate was up 25 percent, and college enrollment was up 45 percent. Moreover, the district argued that, to the extent that racial imbalance currently existed in its elementary schools, it was not the result of its actions, but a result of white flight. In regard to the middle and high schools, it pointed out that they had been racially balanced80 since at least 1980, when the district began operating only one middle school and one high school, which all students attended.

Plaintiffs oppose unitary status. Plaintiffs have supplied the court with the following additional evidence. In 2006, 6,000 students were enrolled in the school district’s schools, of which 4,500 (75 percent) were African American and 1,500 (25 percent) were white. The district has updated some elementary school buildings and replaced others, but now has only four elementary schools, three of which are more than 95 percent African American. The fourth is 85 percent white. Students’ school assignments are determined by the neighborhoods in which they live. Thus, no student is assigned to a school outside his or her neighborhood attendance zone. The attendance zone lines are largely drawn to avoid dividing neighborhoods into different zones and to minimize the length of school bus rides.

The demographics of the city show that some areas are very racially isolated, but that there are some areas that either have significant levels of housing integration or at least are not racially isolated, meaning that a minority neighborhood shares one or more borders with a white neighborhood. The voting districts, which are different from the school districts, further exemplify this point. There are four voting districts in the city, two of which are more than 90 percent African American, but the third voting district is 35 percent white and the fourth is 60 percent white. Last, plaintiffs note that African American students’ graduation rate, enrollment in advanced placement and college preparatory classes, performance on state curriculum tests, and college enrollment still lag far behind that of the white students.

Identify the major issues posed by these facts, the legal standards that control them, and what you believe is the appropriate outcome.

5. Critiques of Desegregation

Desegregation represents the largest judicial intervention into public institutions our courts have ever undertaken. As such, the experience of desegregation largely frames our view of the limits of judicial power and the law in general, as well as the role that courts can and should play in education reform. In this respect, the following materials implicate broad issues that provide context for the rest of the casebook. Likewise, because various educational movements on behalf of other marginalized groups ultimately grow out of desegregation and its basic concept of equality, many of the themes addressed in desegregation will reverberate in subsequent chapters.

Given the enormity of desegregation and these issues, it is no wonder that desegregation generates fierce and differing opinions. The following materials offer a holistic evaluation and critique of desegregation. First, they raise important normative questions regarding the goals of school desegregation, including whether those goals were too narrow, too broad, or unrealistic. Derrick Bell’s work questions the efficacy of Brown and posits that an alternative course might have led to a more favorable long-term outcome. Kevin Brown’s article then explores the socializing and cultural role that education plays in society. He81 conceptualizes the harm in segregation as broader than just unequal education opportunities. He emphasizes that the cultural harms perpetrated by segregation have negatively affected both whites and minorities, which courts almost entirely ignored.

The second set of materials take a more practical approach, identifying the tangible successes and failures of integration. As the report by the Civil Rights Project reveals, the federal courts and government were enormously successful in integrating schools during the early period of desegregation, but the Court’s later decisions permitted schools to resegregate and eliminate previous gains. This subsection closes by posing a practice exercise that asks you to sort through these problems on your own and craft a judicial solution.

Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma

93 Harv. L. Rev. 518 (1980)

The interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites. However, the fourteenth amendment, standing alone, will not authorize a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle and upper class whites.

It follows that the availability of fourteenth amendment protection in racial cases may not actually be determined by the character of harm suffered by blacks or the quantum of liability proved against whites. Racial remedies may instead be the outward manifestations of unspoken and perhaps subconscious judicial conclusions that the remedies, if granted, will secure, advance, or at least not harm societal interests deemed important by middle and upper class whites. Racial justice—or its appearance—may, from time to time, be counted among the interests deemed important by the courts and by society’s policymakers.

In assessing how this principle can accommodate both the Brown decision and the subsequent development of school desegregation law, it is necessary to remember that the issue of school segregation and the harm it inflicted on black children did not first come to the Court’s attention in the Brown litigation: blacks had been attacking the validity of these policies for 100 years. Yet, prior to Brown, black claims that segregated public schools were inferior had been met by orders requiring merely that facilities be made equal. What accounted, then, for the sudden shift in 1954 away from the separate but equal doctrine and towards a commitment to desegregation?

I contend that the decision in Brown to break with the Court’s long-held position on these issues cannot be understood without some consideration of the decision’s value to whites, not simply those concerned about the immorality of racial inequality, but also those whites in policymaking positions able to see the economic and political advances at home and abroad that would follow abandonment of segregation. First, the decision helped to provide immediate credibility to America’s struggle with Communist countries to win the hearts and82 minds of emerging third world peoples. At least this argument was advanced by lawyers for both the NAACP and the federal government. And the point was not lost on the news media. Time magazine, for example, predicted that the international impact of Brown would be scarcely less important than its effect on the education of black children: “In many countries, where U.S. prestige and leadership have been damaged by the fact of U.S. segregation, it will come as a timely reassertion of the basic American principle that ‘all men are created equal.’ ”

Second, Brown offered much needed reassurance to American blacks that the precepts of equality and freedom so heralded during World War II might yet be given meaning at home. Returning black veterans faced not only continuing discrimination, but also violent attacks in the South which rivaled those that took place at the conclusion of World War I. Their disillusionment and anger were poignantly expressed by the black actor, Paul Robeson, who in 1949 declared: “It is unthinkable…that American Negroes would go to war on behalf of those who have oppressed us for generations…against a country the Soviet Union which in one generation has raised our people to the full human dignity of mankind.” It is not impossible to imagine that fear of the spread of such sentiment influenced subsequent racial decisions made by the courts.

Finally, there were whites who realized that the South could make the transition from a rural, plantation society to the sunbelt with all its potential and profit only when it ended its struggle to remain divided by state-sponsored segregation. Thus, segregation was viewed as a barrier to further industrialization in the South.

These points may seem insufficient proof of self-interest leverage to produce a decision as important as Brown. They are cited, however, to help assess and not to diminish the Supreme Court’s most important statement on the principle of racial equality. Here, as in the abolition of slavery, there were whites for whom recognition of the racial equality principle was sufficient motivation. But, as with abolition, the number who would act on morality alone was insufficient to bring about the desired racial reform.

Thus, for those whites who sought an end to desegregation on moral grounds or for the pragmatic reasons outlined above, Brown appeared to be a welcome break with the past. When segregation was finally condemned by the Supreme Court, however, the outcry was nevertheless great, especially among poorer whites who feared loss of control over their public schools and other facilities. Their fear of loss was intensified by the sense that they had been betrayed. They relied, as had generations before them, on the expectation that white elites would maintain lower class whites in a societal status superior to that designated for blacks. In fact, there is evidence that segregated schools and facilities were initially established by legislatures at the insistence of the white working class. Today, little has changed. Many poorer whites oppose social reform as “welfare programs for blacks” although, ironically, they have employment, education, and social service needs that differ from those of poor blacks by a margin that, without a racial scorecard, is difficult to measure.

Unfortunately, poorer whites are now not alone in their opposition to school desegregation and to other attempts to improve the societal status of blacks: recent decisions, most notably by the Supreme Court, indicate that the convergence of black and white interests that led to Brown in 1954 and influenced the character of its enforcement has begun to fade. In Swann v. Charlotte-Mecklenburg Bd. of Educ., Chief Justice Burger spoke of the “reconciliation of competing values” in desegregation cases. If there was any doubt that “competing values” referred to the conflicting interests of blacks seeking desegregation and whites who prefer to retain existing school policies, then the uncertainty was dispelled by Milliken v. Bradley, and by Dayton Bd. of Educ. v. Brinkman. In both cases, the Court elevated the concept of “local autonomy” to a “vital national tradition”: “No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.” Local control, however, may result in the maintenance of a status quo that will preserve superior educational opportunities and facilities for whites at the expense of blacks. As one commentator has suggested, “It is implausible to assume that school boards guilty of substantial violations in the past will take the interests of black school children to heart.”

As a result of its change in attitudes, the Court has increasingly erected barriers to achieving the forms of racial balance relief it earlier had approved. Plaintiffs must now prove that the complained-of segregation was the result of discriminatory actions intentionally and invidiously conducted or authorized by school officials. It is not enough that segregation was the “natural and foreseeable” consequence of their policies. And even when this difficult standard of proof is met, courts must carefully limit the relief granted to the harm actually proved. Judicial second thoughts about racial balance plans with broad-range busing components, the very plans which civil rights lawyers have come to rely on, is clearly evident in these new proof standards.

NOTES AND QUESTIONS

1. What is the interest convergence theory? Is the theory compelling? If the Court is motivated by outside concerns or influences, does this delegitimize the Court or its decision in Brown? Bell’s interest convergence theory became a dominant framework for evaluating all race-related jurisprudence. In the past two decades, no less than 500 separate law review articles have cited to the foregoing article. This does not even include those citing to Bell’s subsequent iterations of the theory. Scholars have found it sufficiently compelling that they have extrapolated it to paradigms beyond race, such as gender, disability, religion, and immigration. See, e.g., Stephen M. Feldman, Principle, History, and Power: The Limits of the First Amendment Religion Clauses, 81 Iowa L. Rev. 833, 871-872 (1996); John Hayakawa Torok, “Interest Convergence” and the Liberalization of Discriminatory Immigration and Naturalization Laws Affecting Asians,84 1943-1965, 9 Chinese Am.: Hist. & Persp. 1 (1995); Michelle A. Travis, Lashing Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans Without Disabilities, 76 Tenn. L. Rev. 311, 330-331 (2009).

Although the theory has continued to gain traction over the years, some scholars have more recently challenged the core thesis or argued that it oversimplifies complex issues. See, e.g., Victor C. Romero, Immigrant Education and the Promise of Integrative Egalitarianism, 2011 Mich. St. L. Rev. 275, 295 (2011) (“there might be a different explanation for minorities’ gains apart from interest convergence that becomes apparent by examining the Court’s recent gay rights jurisprudence”). Justin Driver argues that Bell’s theory suffers from

four analytical flaws that diminish [its] persuasiveness. First, the theory’s overly broad conceptualization of “black interests” and “white interests” obscures the intensely contested disputes regarding what those terms actually mean. Second, the interest-convergence theory incorrectly suggests that the racial status of blacks and whites over the course of United States history is notable more for continuity than for change. Third, the interest-convergence theory accords insufficient agency to two groups of actors—black citizens and white judges—who have played, and continue to play, significant roles in shaping racial realities. Fourth, the interest-convergence theory cannot be refuted and, thus, cannot be examined for its validity because it accommodates racially egalitarian judicial decisions either by contending that they are necessary concessions in order to maintain white racism or by ignoring them altogether.

Justin Driver, Rethinking the Interest-Convergence Thesis, 105 Nw. U. L. Rev. 149, 156-157 (2011).

2. Reconsider the holdings in Brown I, Brown II, Green, Swann, Keyes, Milliken, Freeman, and Jenkins. What aspects, if any, of the holdings in these cases are consistent with a theory of interest convergence? Are any aspects inconsistent?

3. In several of Professor Bell’s articles and books, he argues that the integration strategy has failed blacks, as most continue to attend schools that are both segregated and unequal. See, e.g., Derrick A. Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (2005); Derrick A. Bell, Jr., School Desegregation, 86 Yale L.J. 382 (1976). He argues that blacks would have been better served by a strict enforcement of Plessy’s mandate of separate but equal. If forced to equalize schools, blacks would have received improved opportunities, whether they were integrated or segregated. Moreover, if forced to bear additional costs for segregation, whites would have eventually seen that it was in their interest to integrate schools. In essence, Professor Bell’s critique of the integration strategy is really a critique of integration as a proxy for substantive equality, equal opportunity, and access to good schools. Do you agree? Can separate be equal, or was the Court correct that separate is inherently unequal? Would anything that we currently value today have been lost with Bell’s strategy? Is it true that whites would have voluntarily integrated schools at some point?

Kevin Brown, Has the Supreme Court Allowed the Cure for De Jure Segregation to Replicate the Disease?

78 Cornell L. Rev. 1, 7 (1992)

I. How De Jure Segregation Inculcated a Belief in the Inferiority of African-Americans

Public schools perform a number of functions for American society. The two most important overlap: value inculcation and academic training. Public schools are social institutions that cultivate America’s youth. They inculcate cultural values, including political and social attitudes, opinions and beliefs. For example, schools foster such values as respect for our country, tolerance for political and religious diversity, commitment to self-sufficiency, and commitment to discharge faithfully the duties imposed by citizenship. Schools teach these values by selecting and excluding the materials that teachers present to students. They also instill values through a myriad of administrative rules and regulations governing student and teacher conduct. The Supreme Court’s education jurisprudence has long recognized the importance of education’s socializing function. [M]any of the Court’s recent opinions involving public schooling embrace value-inculcation as the primary role of public education. [As the Court has written, public education is the very vehicle for “ ‘inculcating fundamental values necessary to the maintenance of a democratic political system.’ ”]

The harm resulting from de jure segregation was its impact on the socializing process of public schools. De jure segregation of students, teachers, staff and administrators amounted to administrative rules that inculcated the invidious value—a belief in the inferiority of African-Americans. [This invidious value unconstitutionally distorts the socializing process in two ways.]

One way is to view harms relating to a distortion of the socializing process as harms affecting the rights of all students in public schools. The right that students possess in public schools is not the right to a socializing process where the values instilled by public schools are consistent with their own belief. Rather, it is the right to be subjected to a socializing process that imparts values consistent with the Constitution. A second way to conceptualize the institutional harm of de jure segregation is to view the Constitution as prohibiting public schools from inculcating certain values. Unlike the former, this conceptualization is not centered on the rights of students but focuses on the limitations of the state’s role as educator.

Conceptualizing de jure segregation in this manner accepts the assertion that all students, white and black, were harmed by de jure segregation. The fact that many Caucasian students, like the religious students, might not object to the values being inculcated by the public schools is irrelevant. The rights of students are not to a socializing process in which the values instilled are consistent with their beliefs, but rather to a socializing process in which the values inculcated are consistent with the Constitution. In de jure segregation, when the inculcated values are inconsistent with the Constitution, the rights of all students, including Caucasian students, are violated.

A second way of conceptualizing the institutional harm related to distortions of the socializing process of public schools is to view the Constitution as86 embodying a prohibition on the inculcation of certain values by local school districts. When values that local governments wish to advance, in their role as educators, are inconsistent with values enshrined in the Constitution, the local values must give way. Pursuant to this view, religious socialization—struck down by the Court—is simply in conflict with the value of religious neutrality enshrined by the Religious Clauses of the First Amendment. The Constitution also prohibits public schools from inculcating partisan political beliefs, because doing so would have an adverse impact on the future of our political process. [Likewise, t]he Equal Protection Clause rests upon the value of racial equality, and public schools cannot attempt to instill a contrary belief.

II. The Purpose of Remedies for De Jure Segregation

In most contexts, the primary harm of segregation is stigma. In public elementary and secondary education, however, the inculcation of invidious values is the primary harm. While desegregation is not necessary to eliminate the stigmatic effects of segregation in other contexts, it is necessary in the context of public elementary and secondary education. Since public elementary and secondary schools are transmitters of societal values to the young, remedies for de jure segregation therein become sui generis in anti-discrimination law.

Just as the physical separation of students was not the harm resulting from de jure segregation, mere physical integration in public elementary and secondary schools is not the remedy. The primary harm was allowing the socializing process of schools to instill a belief in the inferiority of African-Americans. The remedy is therefore the elimination of this invidious value inculcation.

The Court’s ideological framework [for remedying constitutional violations, however,] implies that the harm of de jure segregation fell only upon African-Americans. [R]emedies for de jure segregation proceed from the assumption that there is something better about Caucasians than about African-Americans. As a result, while segregation in the past stood as a symbol of the inferiority of African-Americans, the remedies for de jure segregation stand in exactly the same capacity today. Rather than curing a deficiency in the value inculcating process of public schools, the remedies merely replicate the disease.

If African-Americans were as good as Caucasians, then both blacks and whites should be beneficiaries of remedies for de jure segregation. [B]oth white and black school children were harmed by de jure segregation, and therefore, that both black and white school children benefit from interracial contact. The Supreme Court, however, did not view interracial exposure of Caucasians to African-Americans as a benefit for Caucasian students.

NOTES AND QUESTIONS

1. What role does Professor Brown argue that schools play beyond the basic delivery of information? What relevance does he see this role as having to segregation?

2. What is the “invidious value”? What harms, if any, did it create and to whom? How can one measure those harms and attribute them to schools as opposed to other outside factors? Professor Brown suggests that the invidious value is still constitutionally prohibited, regardless of its effect on particular students. Why? Do you agree?

3. When citizens vote with their feet against integration, do they convey the invidious value?

4. What is the remedy to the invidious value? Is some additional remedy beyond the integration of schools required to reverse the invidious value? How long would that remedy remain in force? Have courts responded to the invidious value in any way?

Jack Balkin, What Brown v. Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision

(2002)

Writing an opinion like Brown is not simply a matter of declaring what the law is or should be. It also involves making prudential judgments about the likely effect of the opinion. These include, among other things, how other governmental actors will implement the opinion and to what extent they will resist it, attempt to circumvent or refuse to enforce it. Popular reception also matters greatly. Individuals and groups can often undermine the desired effect of a Supreme Court opinion. Many southern whites moved their children to private schools in response to desegregation orders, and in the seventies and eighties, many northern whites did the same. An even more common response was to move to largely white suburban areas, which grew increasingly in the last half of the twentieth century. Demographic shifts and economic growth allowed many whites to vote with their feet, while black parents, often possessing fewer resources and facing greater social impediments (which included widespread housing discrimination), were increasingly trapped in central urban areas.

Finally, a court must try to imagine how future judges will apply its language. This includes not only lower federal courts and state courts, but future Justices of the Supreme Court. Because a judge on a constitutional court cannot know the future with any degree of precision, the task of decision produces two equal and opposite tendencies: One tendency is to try to state with clarity the basic principles that the judge does not want to be undermined over time. By articulating these basic commitments when the right opportunity presents itself, judges can preserve democratic values and fundamental rights from later periods of retrenchment, which are virtually certain to come as the political winds change. The other tendency takes the uncertainty of the future in precisely the opposite direction: Because one cannot know how events will play out, or what unintended consequences a decision will have, the judge should try to decide as little as possible, and leave the contours of constitutional principle, the details of implementation, or both, to future generations.

PROBLEM

Outline your own opinion in Brown v. Board of Education. You are free to address any issues you think appropriate, but at a minimum consider the following: (1) whether you would join the majority, concur, or dissent; (2) whether the case should be limited to the issue of education or address the larger issue of discrimination and segregation in public laws; (3) whether you would recognize education as a fundamental right under the U.S. Constitution; (4) whether you would overrule Plessy v. Ferguson; (5) whether you would enforce separate but equal rather than mandate desegregation in all instances; (6) whether you would prohibit all race classifications; (7) whether you would rely on social science, the intent of segregation, or its general societal meaning; (8) to what extent the original intent of the framers of the Fourteenth Amendment is relevant; and (9) whether public opinion and potential resistance are relevant to your decision.

In addition, specify your remedy for school segregation (integration, desegregation, compensatory education, and/or antiracist curriculum) and what directions, standards, and timetables you would offer lower courts.

6. Resegregation

Gary Orfield & Chungmei Lee, Racial Transformation and the Changing Nature of Segregation

(January 2006)

School segregation is often perceived as an old and obsolete issue. Reactions include claims that it was solved long ago, that, on the contrary, experience shows it cannot be solved, or that we have learned to make separate schools genuinely equal. None of these perceptions is true. Past research showed that, after a period of desegregation in the late 1960s, black students became increasingly resegregated in the South and Border states. Latino students, who have been excluded from serious desegregation efforts, are becoming even more segregated than black students in Southern and Western regions. Yet, despite recent trends in resegregation, the South and Border states remain among the least segregated for black students, suggesting that desegregation orders in the past have been effective, and that segregation is not an intractable issue. Further, the strong relationship between poverty, race and educational achievement and graduation rates shows that, but for a few exceptional cases under extraordinary circumstances, schools that are separate are still unquestionably unequal. Segregation is an old issue but one that is deeply rooted and difficult to resolve and extremely dangerous to ignore.

Demographic Transformation of American Public Schools

Viewed in historical perspective, the nation’s schools are going through an astonishing transformation since the l960s, changing from a country where89 more than four of every five students were white, to one with just 58 percent white enrollment nationwide and changing slightly each year. Within a decade it is likely that there will be fewer than half white students in our public schools.

Given this transformation of the nation’s public schools, white students are attending schools with more minority students than before. However, of all racial groups, whites remain the most isolated group: the average white student attends schools where more than three quarters (78%) of his or her peers are also white. As a result of this isolation, most nonwhite groups experience less exposure to white students than one would expect given the racial composition of the nation’s public schools. The average black student attends a school that is 30 percent white and the average Latino student, 28 percent. Asian and American Indian students attend schools with larger proportions of white students, likely due to the fact that their populations are far smaller and less residentially segregated than either the black and Latino populations.

Changing Patterns of Segregation by Region

Since the Supreme Court authorized a return to segregated neighborhood schools in 1991 [in Bd. of Educ. v. Dowell, 498 U.S. 237 (1991)], the percentage of black students attending majority nonwhite schools increased in all regions from 66 percent in 1991 to 73 percent in 2003-2004. The most dramatic changes took place in the Southern and Border state regions where the desegregation effort had been concentrated.

Over the 12-year period, the percent of Southern black students in majority non-white schools rose from 61 percent to 71 percent, and the percent of black students in such schools grew from 59 to 69 percent in the Border States. In spite of these changes, in 2003 these two regions remained by a small margin the least segregated for blacks though they had the highest proportion of black students. They are clearly headed backward, however, even faster than other regions.

Intense segregation for black students increased in all regions: the growth of intense segregation for black students in schools with 0-10 percent whites increased nationally from 34 to 38 percent and was most rapid in the Border states, climbing from 33 to 42 percent in twelve years. Nationally, the share of black students in intensely segregated schools increased from 34 to 38 percent.

The Historical Context of Segregation for Black and Latino Students

Although there have been continuing increases in segregation for black students since the late l980s and for Latino students since data were first collected in the late 1960s, these trends are not inevitable and they were very different in some regions in the past.

The long-term record shows more than two decades of rising contact between black and white students, particularly in the Southern and Border States and in some states with small black minorities. The rapid growth of integration in the South began with the passage and enforcement of the 1964 Civil Rights Act, which forbade discrimination in all institutions receiving federal funds and ended about the time the Supreme Court began to authorize school districts to return to segregated neighborhood schools in 1991. By far the most dramatic change took place between 1964 and l970 at the peak of the Civil Rights era, with the Warren Court and the Administration of Lyndon Johnson. During this time, the percent of black students in majority white schools in the South jumped from two percent to 33 percent. Desegregation for black students reached its peak in the late l980s, when 44 percent of black students attended majority white schools, and the South was by a significant margin the least segregated region for black students throughout this period. This was also a period of rising high school graduation rates and of a major decline in the racial achievement gap between whites and blacks. Students were becoming increasingly desegregated despite the growth of the black population relative to whites. Black and white students during this era went to schools that were, on average, significantly less segregated than their neighborhoods. However, after the early 1990s, when the Supreme Court relaxed desegregation standards and allowed a return to neighborhood schools, resegregation occurred and the schools became more segregated.

The story was very different for Latinos. The right of Latino students to desegregation was not established by the Supreme Court until 1973 in the Keyes (Denver) case and it was never seriously enforced except in a few locations. As the number of Latinos soared and residential segregation increased, the schools in many areas became vastly more segregated and there was no significant initiative to address it. The Office for Civil Rights had been denied enforcement powers by President Nixon. The basic problem targeted by most Latino rights advocates was language, not segregation, and the basic fight was for bilingual education, a movement that enjoyed considerable success in the 1970s, met mounting resistance in the 1980s and sharp reversals in the 1990s. Segregation steadily increased and by some measures and in some regions became substantially higher than black segregation. Many desegregation plans were designed only to desegregate black students, since they were designed before the right of Latinos to desegregation remedies was even established by the Supreme Court and often with no civil rights lawyers representing Latino interests. As Latinos become ever more segregated in inferior schools with extremely low graduation rates and test scores, with many found to be failing under [the] No Child Left Behind Act, federal courts have ended desegregation91 in their communities and issued rulings which extinguished the rights of Latino children without ever considering the issue of Latino segregation.

Why Segregation Matters

Racial segregation is not just about race. If race were not linked to other forms of inequality we would be a different society, the society we hope that we can eventually become. Past research has documented that for the segregation of black and Latino students the great majority of cases is closely related to concentrated poverty. The important fact is that we are not talking simply about racial segregation but about the whole syndrome of inequalities related to the double or triple segregation these schools typically face. For Latino students, in many cases it also involves linguistic isolation in schools with many native Spanish speakers and few fluent native speakers of academic English, which students must acquire to be successful in high school and college. Concentrated poverty is shorthand for a constellation of inequalities that shape schooling. These schools have less qualified, less experienced teachers, lower levels of peer group competition, more limited curricula taught at less challenging levels, more serious health problems, much more turnover of enrollment, and many other factors that seriously affect academic achievement. There may or may not be severe inequalities of school finance, but a very basic problem in any case is all the added instructional costs and burdens that are concentrated in these segregated high poverty schools—language training, some forms of special education, constant training and supervision of new teachers because teachers leave much more rapidly, remedial education, social work and counseling for kids from severely troubled families, health emergencies, frequent moves and school transfer in mid-year, and many others.

This means that equal dollars cannot produce equal opportunities. This syndrome of inequalities is so profound that there is a very striking relationship between a school’s poverty level and its test scores, independent of any other factors. Reformers for the past 40 years have consistently noted and celebrated the exceptions to this pattern, partly because they are so rare, but they have never figured out how to “scale up” those patterns of leadership and extraordinary dedication found in many of those schools or even, in many cases, how to maintain that success in specific schools after their great leader leaves, or faculty teams break up, or resources are withdrawn in a budget crunch.

The data show that in 2003-4 almost one-seventh of U.S. schools reported that they had 80-100 percent minority students, and three-fourths of those schools reported that 50-100 percent of their students were from families poor enough to qualify for free or reduced price school lunches. Given that some schools do not offer the lunch program and that many children in poor high schools either do not eat in the cafeteria or are too ashamed to apply for free lunch by documenting their family’s poverty, the rate is doubtless higher. At the other extreme, 52 percent of U.S. schools have 0 to 20% minority students and only one-seventh of those schools are dealing with concentrated poverty, which is related to many negative factors from poor prenatal development, poor childcare and preschool experiences, untreated health problems, instability from92 frequent involuntary moves, exposure to neighborhood violence, schools with less trained and experienced teachers, and many more sources of inequality.

NOTES AND QUESTIONS

1. Does it surprise you to learn that desegregation was actually working, particularly in the South and border states? Does it surprise you that after desegregation orders were terminated, schools have now resegregated to levels in excess of 1970 levels? Could any policy or legal choices have avoided this result?

2. In a section of the report not included above, Orfield and Lee focus on the Supreme Court decisions that authorized the termination of desegregation orders and treat them as causal agents of resegregation. Is this criticism of the Court fair? Could or should the Court have decided cases such as Milliken v. Bradley, 418 U.S. 717 (1974), Freeman v. Pitts, 503 U.S. 467 (1992), and Missouri v. Jenkins, 515 U.S. 70 (1991), any differently?

3. What impact does the high level of segregation have on students in the modern context? Does it matter that the current segregation is not de jure segregation? Do schools and society have any interest in continuing integrated schools, even though courts are increasingly no longer requiring it?

4. Orfield and Lee indicate that school desegregation plans can stabilize housing patterns and, in some instances, actually produce increases in housing integration. Louisville, Kentucky, offers a good example. Albeit modest, residential integration accompanied court-ordered school integration and continued after the court terminated its supervision of the schools in 2000. See Brief for Respondents at 3-4, Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (No. 05-915). How and why would school desegregation plans have positive effects in housing?

5. Orfield and Lee suggest that many now see segregation in schools as inevitable, but in fact, it is not. Do you think the current segregation in our schools is inevitable? If not, segregation in the future is not inevitable either. Orfield and Lee propose a series of policies to avoid segregation, including “continually monitor[ing] housing market discrimination and steering”; expanding “[s]uccessful magnet school programs that produce integrated student bodies within school districts”; creating “regional magnets drawing students together for special programs across school district boundary lines”; setting “specific integration goals and policies” for charter schools; continuing “[t]ransfer policies that foster integration” and discontinuing “transfers that increase segregation or undermine integrated communities”; requiring “[s]tate civil rights and legal officials [to] support efforts of communities to retain and expand school integration and…encourage[ing] regional cooperation among suburbs as suburban resegregation spreads”; and sponsoring “basic and applied research on the spread of multiracial schools, their impact on learning and degree attainment, and preparation for functioning in multiracial communities and on the development of techniques and curricula to improve outcomes in these schools” through private foundations, university centers, and federal research agencies. Are any of these recommendations compelling? What are the constitutional93 implications of each of these recommendations? How will courts most likely respond to such efforts?

6. In some ways, reality is proving even worse than the Civil Rights Project’s projections. The Great Recession increased the number of low-income students attending public schools. Between 2001 and 2011, the South saw a 33 percent growth in poor students, the West 31 percent, the Midwest 40 percent, and the Northeast 21 percent. So. Educ. Found., A New Majority: Low Income Students Now a Majority in the Nation’s Public Schools 7 (2015). By 2013, low-income students had become the majority in our nation’s schools. Id. at 5-6. In several states, low-income students are approaching or have now become a super-majority in public schools. Id.

This growth in poverty also coincided with an increase in poverty concentration and racial segregation in particular schools. At the beginning of the recession, one in five low-income students attended a school whose overall student population was 30 percent or more poor. Bruce D. Baker et al., Is School Funding Fair? A National Report Card 5 (2015). By 2012, that number jumped to more than one in three. Id. At the other end of the spectrum, the percent of low-income students attending predominantly middle-income schools shrunk considerably. Id. Similar increases in racial isolation occurred as well. Gary Orfield & Erica Frankenberg, Brown at 60: Great Progress, a Long Retreat and an Uncertain Future 10 (2014).

B. VOLUNTARY DESEGREGATION

1. Race-Based Assignments

While mandatory desegregation has largely run its course, voluntary desegregation has not. Over the past two decades, public schools that were under no legal obligation to desegregate have taken voluntary steps to reduce racial isolation or increase diversity. The primary legal issue with these efforts has been the level of scrutiny that courts should apply. As far back as Swann v. Charlotte-Mecklenburg Board of Education, the Court indicated that school districts have broad authority to implement aggressive desegregation plans. It wrote that school authorities “might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.” 402 U.S. 1, 16 (1971). This quote, however, was dicta and came before the Court’s affirmative action decisions that applied strict scrutiny to the consideration of race in higher education admissions, governmental contracts, and voting. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Shaw v. Reno, 509 U.S. 630 (1993); Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). In applying strict scrutiny, these cases94 required the state to demonstrate a compelling interest to justify the consideration of race and to show that the means chosen to pursue that interest were narrowly tailored.

In the 1990s, various courts of appeals heard cases involving the consideration of race in elementary and secondary education student assignments. See, e.g., Tuttle v. Arlington Cnty. Sch. Bd., 195 F.3d 698 (4th Cir. 1999); Hunter ex rel. Brandt v. Regents of the Univ. of Cal., 190 F.3d 1061 (9th Cir. 1999); Wessman v. Gittens, 160 F.3d 790 (1st Cir. 1998). The assignment programs in those cases involved admission to competitive magnet schools and other specialized programs. They did not implicate school districts’ general student assignment policies in which merit or “competitive” admissions are irrelevant. For this reason, these cases bore closer analogy to higher education than to elementary and secondary education. There was little question that strict scrutiny applied to these competitive programs.

The question of what standard applies to general noncompetitive student assignment policies that seek to desegregate remained open. Many believed a lower level of scrutiny should apply to these assignment plans. See, e.g., Derek W. Black, In Defense of Voluntary Desegregation: All Things Are Not Equal, 44 Wake Forest L. Rev. 107 (2009); Joseph Brunner, Square Pegs into Round Holes? Strict Scrutiny and Voluntary School Desegregation Plans, 75 U. Cin. L. Rev. 791, 791 (2006); Goodwin Liu, Seattle and Louisville, 95 Cal. L. Rev. 277, 311 (2007). First, even if a voluntary desegregation plan assigns a student to a school other than the one he or she sought, the result is not an absolute denial of educational opportunity. The district still provides opportunities in another school within the district. Second, while school districts might pay close attention to race in ensuring that all schools are integrated, no group is systematically favored over another. Voluntary desegregation “prefers” multiracial schools, not individual racial groups. Third, in most voluntary desegregation policies, the extent to which race will even play a role in any given assignment varies depending on the existing racial makeup of a school, the number of students seeking assignment, the number of available seats, and the number of students who have siblings at the school. For most students, race plays no role in assignment. Fourth, even when race is relevant, it is arguably misleading to say that schools discriminate against students based on race. Because individual characteristics and merit are irrelevant in the school assignments, there are no relevant criteria that the school ignores, nor is there the elevation of one deserving student over another undeserving student. Thus, race is not used, in the traditional sense, to disadvantage or “discriminate” against students who would have otherwise been enrolled. Finally, as implied above, these plans do not involve merit-based competition. At worst, one might argue they are in competition in the sense of a lottery, but lotteries are not competitions. Lotteries entail winners and losers, but they are not based on skill or merit. And with school lotteries, there are no absolute “losers,” as everyone is assigned to a school.

For these and other reasons, the first court to squarely address voluntary desegregation held that strict scrutiny did not apply. Comfort ex rel. Neumyer v. Lynn Sch. Comm., 283 F. Supp. 2d 328, 366 (D. Mass. 2003) (holding that intermediate scrutiny applies). The appellate court, however, reversed and held95 that strict scrutiny applied. Comfort v. Lynn Sch. Comm., 418 F.3d 1, 12-13 (1st Cir. 2005). The lower court, recognizing that higher courts might overturn it on that point, had also applied strict scrutiny in the alternative. 283 F. Supp. 2d at 366-391. Both the district court and the appellate court found that the plan met strict scrutiny. The Supreme Court denied certiorari in the case. 546 U.S. 1061 (2005).

These issues finally reached the Supreme Court two years later in Parents Involved in Community Schools v. Seattle, which held in a 5-4 decision written by Chief Justice Roberts that strict scrutiny applies to voluntary desegregation plans that use individual racial classifications as a factor in assigning students to schools. Justice Kennedy, the fifth vote for the majority, did not join the entirety of Chief Justice Robert’s opinion and wrote separately. Justice Kennedy rejected those portions of Chief Justice Robert’s opinion that argued that the only compelling interest sufficient to justify the voluntary desegregation plans was remedying past discrimination. Justice Kennedy concluded that preventing racial isolation and pursuing the educational benefits of diversity were also compelling interests. The four dissenters agreed with Justice Kennedy on this point. Together they made five votes for the principle that avoiding racial isolation and pursuing the benefits of diversity are compelling interests in elementary and secondary schools. Finally, Justice Kennedy distinguished between voluntary desegregation plans that use individual racial classifications to assign students and those that do not, such as those that only consider race generally when drawing school district boundaries. With the latter, a student, regardless of his or her race, would be assigned to the same school as other students in his or her neighborhood. Kennedy indicated that plans taking this approach likely would not even trigger strict scrutiny.

The Court’s opinion in Parents Involved suggests two important questions control the framework for evaluating voluntary desegregation and other race-based programs in the future. First, does the school district rely on individualized racial classifications to grant or deny educational opportunities to students? If so, strict scrutiny applies, and the school should perform an individualized review of each student analogous to that in higher education. If the district does not classify individual students by race and only considers race generally or at the group level, strict scrutiny likely does not apply so long as the school’s goals are appropriate. Second, what is the school district’s motivation for the consideration of race? A school might consider race to remedy discrimination, avoid racial isolation, promote diversity, or pursue some other valid goal. Each of these goals suggests that the means by which a school pursues them will be different. The materials following Parents Involved develop this issue further.

Parents Involved in Community Schools v. Seattle School District No. 1

551 U.S. 701 (2007)

Chief Justice Roberts announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III-A, and III-C, and an opinion with respect to Parts III-B and IV, in which Justices Scalia, Thomas, and Alito join.

The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or nonwhite; the Jefferson County school district as black or “other.” In Seattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests. In each case, the school district relies upon an individual student’s race in assigning that student to a particular school, so that the racial balance at the school falls within a predetermined range based on the racial composition of the school district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection.

Both cases present the same underlying legal question—whether a public school that had not operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making school assignments. Although we examine the plans under the same legal framework, the specifics of the two plans, and the circumstances surrounding their adoption, are in some respects quite different.

[In 1998,] Seattle School District No. 1 adopted the plan at issue in this case for assigning students to [high] schools. The plan allows incoming ninth graders to choose from among any of the district’s high schools, ranking however many schools they wish in order of preference.

Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of “tiebreakers” to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district’s public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. If an oversubscribed school is not within 10 percentage points of the district’s overall white/nonwhite racial balance, it is what the district calls “integration positive,” and the district employs a tiebreaker that selects for assignment students whose race “will serve to bring the school into balance.” If it is still necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is the geographic proximity of the school to the student’s residence.

Seattle has never operated segregated schools—legally separate schools for students of different races—nor has it ever been subject to court-ordered97 desegregation. It nonetheless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments.

Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson County had maintained a segregated school system, and in 1975 the District Court entered a desegregation decree. Jefferson County operated under this decree until 2000, when the District Court dissolved the decree after finding that the district had achieved unitary status.

In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment plan at issue in this case. Approximately 34 percent of the district’s 97,000 students are black; most of the remaining 66 percent are white. The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent.

At the elementary school level, based on his or her address, each student is designated a “resides” school to which students within a specific geographic area are assigned; elementary resides schools are “grouped into clusters in order to facilitate integration.” The district assigns students to nonmagnet schools in one of two ways: Parents of kindergartners, first graders, and students new to the district may submit an application indicating a first and second choice among the schools within their cluster; students who do not submit such an application are assigned within the cluster by the district. “Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines in the District’s current student assignment plan.” If a school has reached the “extremes of the racial guidelines,” a student whose race would contribute to the school’s racial imbalance will not be assigned there. After assignment, students at all grade levels are permitted to apply to transfer between nonmagnet schools in the district. Transfers may be requested for any number of reasons, and may be denied because of lack of available space or on the basis of the racial guidelines.

III

It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Johnson v. California, 543 U.S. 499, 505-06 (2005); Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Adarand Constructors v. Pena, 515 U.S. 200, 224 (1995). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand, 515 U.S. at 227.

Without attempting to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. [Because the Seattle public schools were never segregated by law or “subject to court-ordered desegregation decrees” and the Jefferson County schools were declared unitary in 2000, the use of race in these districts “must be justified on some other basis.”]

The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter v. Bollinger. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review.” As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance.

In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints”; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way.

Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County. The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in “[p]roviding students the opportunity to attend schools with diverse student enrollment.” But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “ ‘broadly diverse.’ ”

Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment.” Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contends that because the diversity they seek is racial diversity—not the broader diversity at issue in Grutter—it makes sense to promote that interest directly by relying on race alone.

[I]t is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate. The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. [T]he racial demographics in each district—whatever they happen to be—drive the required “diversity” numbers. The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored to “the goal established by the school board of attaining a level of diversity within the schools that approximates the district’s overall demographics.”

The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective school districts—or rather the white/nonwhite or black/“other” balance of the districts, since that is the only diversity addressed by the plans. Indeed, in its brief Seattle simply assumes that the educational benefits track the racial breakdown of the district. This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.”

Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” The validity of our concern is that racial balancing has “no logical stopping point.” [This problem] is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the districts’ demographics shift, so too will their definition of racial diversity. Racial balancing is not transformed from “patently100 unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.”

The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students. Elementary school students are assigned to their first- or second-choice school 95 percent of the time, and transfers, which account for roughly 5 percent of assignments, are only denied 35 percent of the time—and presumably an even smaller percentage are denied on the basis of the racial guidelines, given that other factors may lead to a denial. Jefferson County estimates that the racial guidelines account for only 3 percent of assignments.

[T]he minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school—from 4 to 14.5 percent. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15-50% range.’ ” Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it.

The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications.

This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, and has been repeatedly rejected. The reasons for rejecting a motives test for racial classifications are clear enough. “The Court’s emphasis on ‘benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility.…‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically101 acceptable burden, imposed on particular citizens on the basis of race, is reasonable.”

The parties and their amici debate which side is more faithful to the heritage of Brown v. Bd. of Educ., but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, 349 U.S. 294, 300-01 (1955) (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Justice Kennedy, concurring in part and concurring in the judgment.

The Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts of the country seek to teach that principle by having classrooms that reflect the racial makeup of the surrounding community. That the school districts consider these plans to be necessary should remind us our highest aspirations are yet unfulfilled. But the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome. In my view the state-mandated racial classifications at issue, official labels proclaiming the race of all persons in a broad class of citizens—elementary school students in one case, high school students in another—are unconstitutional as the cases now come to us.

102

The opinion of the Court and Justice Breyer’s dissenting opinion describe in detail the history of integration efforts in Louisville and Seattle. These plans classify individuals by race and allocate benefits and burdens on that basis; and as a result, they are to be subjected to strict scrutiny. The dissent finds that the school districts have identified a compelling interest in increasing diversity, including for the purpose of avoiding racial isolation. The plurality, by contrast, does not acknowledge that the school districts have identified a compelling interest here. For this reason, among others, I do not join Parts III-B and IV. Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.

Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does.

This is by way of preface to my respectful submission that parts of the opinion by the Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” is not sufficient to decide these cases. Fifty years of experience since Brown v. Bd. of Educ. should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.

The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most certainly justified in the context of his dissent in Plessy v. Ferguson, 163 U.S. 537, 559 (1896). The Court’s decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.

In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious103 measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decision maker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.

Each respondent has asserted that its assignment of individual students by race is permissible because there is no other way to avoid racial isolation in the school districts. Yet each has failed to provide the support necessary for that proposition. And individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest.

In the cases before us it is noteworthy that the number of students whose assignment depends on express racial classifications is limited. I join Part III-C of the Court’s opinion because I agree that in the context of these plans, the small number of assignments affected suggests that the schools could have achieved their stated ends through different means. These include the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter, though of course the criteria relevant to student placement would differ based on the age of the students, the needs of the parents, and the role of the schools.

[II]

To uphold these programs the Court is asked to brush aside two concepts of central importance for determining the validity of laws and decrees designed to alleviate the hurt and adverse consequences resulting from race discrimination. The first is the difference between de jure and de facto segregation; the second, the presumptive invalidity of a State’s use of racial classifications to differentiate its treatment of individuals.

Our cases recognized a fundamental difference between those school districts that had engaged in de jure segregation104 and those whose segregation was the result of other factors. School districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate; those that were de facto segregated did not. From the standpoint of the victim, it is true, an injury stemming from racial prejudice can hurt as much when the demeaning treatment based on race identity stems from bias masked deep within the social order as when it is imposed by law. The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact. Laws arise from a culture and vice versa. Neither can assign to the other all responsibility for persisting injustices.

Yet, like so many other legal categories that can overlap in some instances, the constitutional distinction between de jure and de facto segregation has been thought to be an important one. It must be conceded its primary function in school cases was to delimit the powers of the Judiciary in the fashioning of remedies. The distinction ought not to be altogether disregarded, however, when we come to that most sensitive of all racial issues, an attempt by the government to treat whole classes of persons differently based on the government’s systematic classification of each individual by race. There, too, the distinction serves as a limit on the exercise of a power that reaches to the very verge of constitutional authority. Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake. The allocation of governmental burdens and benefits, contentious under any circumstances, is even more divisive when allocations are made on the basis of individual racial classifications.

Notwithstanding these concerns, allocation of benefits and burdens through individual racial classifications was found sometimes permissible in the context of remedies for de jure wrong. Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it. The remedy, though, was limited in time and limited to the wrong. The Court has allowed school districts to remedy their prior de jure segregation by classifying individual students based on their race. The limitation of this power to instances where there has been de jure segregation serves to confine the nature, extent, and duration of governmental reliance on individual racial classifications.

The cases here were argued upon the assumption, and come to us on the premise, that the discrimination in question did not result from de jure actions. And when de facto discrimination is at issue our tradition has been that the remedial rules are different. The State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here.

The [dissent’s] argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an105 element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.

The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin.

This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand.

That statement, to be sure, invites this response: A sense of stigma may already become the fate of those separated out by circumstances beyond their immediate control. But to this the replication must be: Even so, measures other than differential treatment based on racial typing of individuals first must be exhausted.

The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors—some influenced by government, some not—neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.

Justice Thomas, concurring.

The dissent repeatedly claims that the school districts are threatened with resegregation. It also argues that these plans can be justified as part of the school boards’ attempts to “eradicat[e] earlier school segregation.” Contrary to the dissent’s rhetoric, neither of these school districts is threatened with resegregation. Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference.

Racial imbalance is the failure of a school district’s individual schools to match or approximate the demographic makeup of the student population at106 large. Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. Because racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.

[Nonetheless, t]he dissent claims that “the law requires application here of a standard of review that is not ’strict’ in the traditional sense of that word.” [This argument is] inimical to the Constitution and to this Court’s precedents. The constitutional problems with government race-based decisionmaking are not diminished in the slightest by the presence or absence of an intent to oppress any race or by the real or asserted well-meaning motives for the race-based decisionmaking. Purportedly benign race-based decisionmaking suffers the same constitutional infirmity as invidious race-based decisionmaking. “[R]acial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.”

Most of the dissent’s criticisms of today’s result can be traced to its rejection of the colorblind Constitution. In place of the colorblind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart. Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize today’s faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to “solve the problems at hand,” the Constitution enshrines principles independent of social theories. Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories. Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow.

Justice Stevens, dissenting.

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Bd. of Educ. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions. The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude. The only justification for refusing to acknowledge the obvious importance of that difference is the citation of a few recent opinions—none of which even approached unanimity—grandly proclaiming that all racial classifications must be analyzed under “strict scrutiny.”

107 Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Bd. of Educ. long ago promised—efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.

The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.

Facts

The historical and factual context in which these cases arise is critical. In Brown, this Court held that the government’s segregation of schoolchildren by race violates the Constitution’s promise of equal protection. The Court emphasized that “education is perhaps the most important function of state and local governments.” And it thereby set the Nation on a path toward public school integration. [Efforts subsequent to Brown] brought about considerable racial integration. More recently, however, progress has stalled. Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the South). As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99-100% minority. In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts.

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The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories.

I describe those histories at length in order to highlight three important features of these cases. First, the school districts’ plans serve “compelling interests” and are “narrowly tailored” on any reasonable definition of those terms. Second, the distinction between de jure segregation (caused by school systems) and de facto segregation (caused, e.g., by housing patterns or generalized societal discrimination) is meaningless in the present context, thereby dooming the plurality’s endeavor to find support for its views in that distinction. Third, real-world efforts to substitute racially diverse for racially segregated schools (however caused) are complex, to the point where the Constitution cannot plausibly be interpreted to rule out categorically all local efforts to use means that are “conscious” of the race of individuals.

[Lengthy description of the history of segregation in the two districts omitted.]

II. The Legal Standard

A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it. Chief Justice Burger, on behalf of a unanimous Court [in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971)], wrote: “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.” The statement was not a technical holding in the case. But the Court set forth in Swann—a basic principle of constitutional law—a principle of law that has found “wide acceptance in the legal culture.” Thus, in North Carolina Bd. of Educ. v. Swann, 402 U.S. 43, 45 (1971), this Court, citing Swann, restated the point. “[S]chool authorities,” the Court said, “have wide discretion in formulating school policy, and…as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements.” These statements nowhere suggest that this freedom is limited to school districts where court-ordered desegregation measures are also in effect.

Courts are not alone in accepting as constitutionally valid the legal principle that Swann enunciated—i.e., that the government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so. That principle has been accepted by every branch of government and is rooted in the history of the Equal Protection Clause itself. Thus, Congress has enacted numerous race-conscious statutes that109 illustrate that principle or rely upon its validity. In fact, without being exhaustive, I have counted 51 federal statutes that use racial classifications. I have counted well over 100 state statutes that similarly employ racial classifications. Presidential administrations for the past half-century have used and supported various race-conscious measures.

There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race-conscious criteria to further that purpose, namely to bring the races together. Although the Constitution almost always forbids the former, it is significantly more lenient in respect to the latter. Sometimes Members of this Court have disagreed about the degree of leniency that the Clause affords to programs designed to include. But I can find no case in which this Court has followed Justice Thomas’ “color-blind” approach. And I have found no case that otherwise repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races.

[A]s Grutter specified, “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause.” And contexts differ dramatically one from the other. Governmental use of race-based criteria can arise in the context of, for example, census forms, research expenditures for diseases, assignments of police officers patrolling predominantly minority-race neighborhoods, efforts to desegregate racially segregated schools, policies that favor minorities when distributing goods or services in short supply, actions that create majority-minority electoral districts, peremptory strikes that remove potential jurors on the basis of race, and others. Given the significant differences among these contexts, it would be surprising if the law required an identically strict legal test for evaluating the constitutionality of race-based criteria as to each of them.

Here, the context is one in which school districts seek to advance or to maintain racial integration in primary and secondary schools. It is a context, as Swann makes clear, where history has required special administrative remedies. And it is a context in which the school boards’ plans simply set race-conscious limits at the outer boundaries of a broad range.

This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.

In my view, this contextual approach to scrutiny is altogether fitting. I believe that the law requires application here of a standard of review that is not “strict” in the traditional sense of that word, although it does require the careful review I have just described. Apparently Justice Kennedy also agrees that strict scrutiny would not apply in respect to certain “race-conscious” school110 board policies. Nonetheless, in light of Grutter and other precedents, I shall adopt the first alternative. I shall apply the version of strict scrutiny that those cases embody.

Compelling Interest

Regardless of its name, the interest at stake [in this case] possesses three essential elements. First, there is a historical and remedial element: an interest in setting right the consequences of prior conditions of segregation. It is an interest in continuing to combat the remnants of segregation caused in whole or in part by these school-related policies, which have often affected not only schools, but also housing patterns, employment practices, economic conditions, and social attitudes. It is an interest in maintaining hard-won gains. And it has its roots in preventing what gradually may become the de facto resegregation of America’s public schools.

Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools. Studies suggest that children taken from those schools and placed in integrated settings often show positive academic gains. Other studies reach different conclusions. But the evidence supporting an educational interest in racially integrated schools is well established and strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one.

Third, there is a democratic element: an interest in producing an educational environment that reflects the “pluralistic society” in which our children will live. It is an interest in helping our children learn to work and play together with children of different racial backgrounds. It is an interest in teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation.

In light of this Court’s conclusions in Grutter, the “compelling” nature of these interests in the context of primary and secondary public education follows here a fortiori. Primary and secondary schools are where the education of this Nation’s children begins, where each of us begins to absorb those values we carry with us to the end of our days. As Justice Marshall said, “unless our children begin to learn together, there is little hope that our people will ever learn to live together.”

Narrow Tailoring

[Justice Stevens finds the plans are narrowly tailored.] First, the race-conscious criteria at issue only help set the outer bounds of broad ranges. They constitute but one part of plans that depend primarily upon other, nonracial elements. To use race in this way is not to set a forbidden “quota.” In fact, the defining feature of both plans is greater emphasis upon student choice. In Seattle, for example, in more than 80% of all cases, choice alone determines which high schools Seattle’s ninth graders will attend. After ninth grade, students can decide voluntarily to transfer to a preferred district high school111 (without any consideration of race-conscious criteria). Choice, therefore, is the “predominant factor” in these plans. Race is not. Second, broad-range limits on voluntary school choice plans are less burdensome, and hence more narrowly tailored than other race-conscious restrictions this Court has previously approved. Indeed, the plans before us are more narrowly tailored than the race-conscious admission plans that this Court approved in Grutter. Here, race becomes a factor only in a fraction of students’ non-merit-based assignments-not in large numbers of students’ merit-based applications. Moreover, [d]isappointed students are not rejected from a State’s flagship graduate program; they simply attend a different one of the district’s many public schools, which in aspiration and in fact are substantially equal.

NOTES AND QUESTIONS

1. The Court bases its holding largely on Grutter. Grutter is typically characterized as an affirmative action case. What is affirmative action? Can the student assignment plans in Parents Involved be characterized appropriately as affirmative action?

2. Chief Justice Roberts argues that “the way ‘to achieve a system of determining admission to the public schools on a nonracial basis,’ is to stop assigning students on a racial basis.” Do you agree? Do you believe that race-consciousness advances or impedes racial equality?

3. A core disagreement among the Justices in this case is in regard to the justifications for the consideration of race and desegregation. What justifications do the various opinions recognize? Which justifications command five votes? Regardless of whether they are compelling, are there other justifications or reasons to engage in voluntary desegregation? The district court in Comfort v. Lynn School Committee identified five separate potential compelling interests: (1) promoting racial and ethnic diversity, (2) increasing educational opportunities for all students and improving the quality of education, (3) ensuring safety, (4) reducing minority isolation/remedying the effects of de facto segregation, and (5) providing an education to all students that satisfies federal and state constitutional requirements. 283 F. Supp. 2d 328, 375, 384, 389 (D. Mass. 2003).

4. Justice Kennedy’s opinion is the controlling opinion in this case, as he provides the fifth vote to strike down these plans on narrow tailoring grounds, but he agrees with the dissent that the districts acted pursuant to a compelling interest. Justice Kennedy finds that both avoiding racial isolation and promoting diversity are compelling interests. Are these interests distinct from one another or largely the same? Considering each district separately, were these diversity plans, racial isolation plans, or both? Does it matter?

5. A second core disagreement in Parents Involved is the level of scrutiny that should apply to these plans. The majority holds that strict scrutiny applies, while the dissent argues that a lower level of scrutiny is appropriate. Justice Breyer argues that using race to include is distinct from using race to exclude. Thus, strict scrutiny should not apply to voluntary desegregation plans that bring students112 together. In what other ways is voluntary desegregation distinct? Is voluntary desegregation sufficiently distinct from other uses of race that it should be accorded different status? Even if strict scrutiny applies, should the districts be required to engage in the individualized review required in higher education admissions in Grutter, or does individualized review mean something different in elementary and secondary education? In Parents Involved, Justice Kennedy writes, “Race may be one component of…diversity, but other demographic factors, plus special talents and needs, should also be considered.” 551 U.S. at 798. In Grutter, the Court described Michigan’s diversity plan as relying on

[s]o-called “ ‘soft’ variables” such as “the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of undergraduate course selection” are all brought to bear in assessing an “applicant’s likely contributions to the intellectual and social life of the institution.” The policy does not restrict the types of diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes “many possible bases for diversity admissions.” The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against.…” The policy does not define diversity “solely in terms of racial and ethnic status.” Nor is the policy “insensitive to the competition among all students for admission to the [L]aw [S]chool.” Rather, the policy seeks to guide admissions officers in “producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession.”

Grutter v. Bollinger, 539 U.S. 306, 315-316 (2003).

6. The majority finds that these plans are not narrowly tailored or necessary because, if the districts use race so rarely, the use of race has little integrative or diversity effect. Thus, a race-neutral policy would presumably produce similar results. If this is the case, then why are the districts relying on race?

7. Is it anomalous that desegregation could be constitutional the day before a court grants unitary status but unconstitutional the next day, or does the extraordinary nature of constitutional remedies such as desegregation require their termination as soon as the violation is remedied? Given that the line between segregation that is traceable to past discrimination and de facto segregation is blurred, does the rigid limitation on remedying past discrimination make practical sense? The Court’s unitary status standard, which only requires the elimination of the vestiges of discrimination “to the extent practicable,” implicitly concedes that the vestiges of intentional segregation may still play some current causal role in school districts.

8. By most accounts, these desegregation plans were successful and popular. Emily Bazelon, The Next Kind of Integration, N.Y. Times Mag., July 20, 2008, at 43 (discussing an 88 percent parental support rating for Louisville’s desegregation plan); see also Comfort ex rel. Neumyer v. Lynn Sch. Comm., 283 F. Supp. 2d 328, 349 (D. Mass. 2003) (discussing actions to make the plan popular among all demographic groups). What accounts for the success and popularity of these plans, given the long and generally tortured history of court supervised desegregation?

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9. To have standing to assert a claim, the plaintiff must suffer a harm or “ ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized and (b) “ ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). What harms, if any, do these plans impose on students? Are there tangible harms, or only symbolic and stigmatic harms? A significant portion of Justice Kennedy’s opinion is premised on the notion that labeling students according to race stigmatizes them. Is it possible that these plans do not stigmatize students at all, but rather make race irrelevant? For a complete discussion of the potential stigmatic harms of voluntary desegregation, see Derek W. Black, In Defense of Voluntary Desegregation: All Things Are Not Equal, 44 Wake Forest L. Rev. 107 (2009).

10. Justice Kennedy distinguishes between individualized considerations of race and generalized considerations of race that are not applied to individual students. Why are these two methods of desegregation constitutionally distinct for Justice Kennedy, and what leeway does he provide for generalized considerations? Is this leeway sufficient to permit schools to continue to pursue voluntary desegregation, or does the holding in this case effectively foreclose future efforts?

As the foregoing notes and questions demonstrate, the Court’s rationale and holding were very complex and raised as many questions as they answered. Justice Kennedy’s opinion, in particular, indicated that districts relying on individual race classifications must comply with the strict scrutiny standard of Grutter v. Bollinger, but he did not fully explain how. Likewise, his opinion indicated that a district might avoid strict scrutiny altogether, but he did not explain why. In effect, the Court’s holding sanctioned the possibility of voluntary integration while, at the same time, erecting barriers to its practical implementation. Kimberly Robinson argues that, in light of these conflicting and incomplete messages, districts must make tough decisions; most will err on the side of caution. The excerpt below explores the precise difficulties that districts face in complying with the standards set out in Parents Involved.

Kimberly Jenkins Robinson, The Constitutional Future of Race-Neutral Efforts to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools

50 B.C. L. Rev. 277 (2009)

Districts that want to use a racial classification to achieve diversity and to avoid racial isolation will encounter tremendous difficulty satisfying the Court’s narrow tailoring requirements, particularly after Parents Involved. [T]he majority’s narrow tailoring analysis leaves at best a limited set of circumstances under which districts may adopt a racial classification to achieve these interests. First, the “necessity requirement” represents one of the chief obstacles a district will114 encounter when it tries to satisfy the narrow tailoring prong of strict scrutiny. In order to show that a racial classification is necessary, a district must prove that it can neither achieve diversity nor avoid racial isolation without the classification. Thus, the necessity requirement dovetails with the requirement that a district show its “serious, good faith consideration of workable race-neutral alternatives.” A district could meet this standard by developing careful documentation of the race-neutral options it examined and the ineffectiveness or nonfeasibility of those options in meeting its objectives when compared with a racial classification.

[Another problem is] that, although the research shows persuasive evidence of benefits from diversity and avoiding racial isolation when contrasted with racially isolated or nondiverse schools, research does not (yet) establish the composition of students needed to achieve these benefits. Without [clarity on this point], a district will face an almost insurmountable obstacle in proving that a racial classification is necessary in the Court’s eyes.

[Even if districts could justify a specific required level of diversity], the Court might label the specified levels an unconstitutional quota. Precedent indicates that the Court will not countenance the use of fixed racial goals that establish seats that are “reserved exclusively for certain minority groups.”

To avoid this dilemma, a school district could attempt to chart a course to achieve a critical mass of minority students. Grutter indicates that the Court may approve of “minimum goals for minority enrollment” when those goals embody “a range demarcated by the goal itself.” [But s]uch goals must operate flexibly and must permit the consideration of competing goals, so that a student that does not further the goals is not foreclosed from enrollment. [Thus,] the district would be required to undertake a nonmechanical consideration of an array of factors and enable all students to be eligible for all seats in a school.

[But given that] most school districts do not assign students on the basis of merit and do not undertake an individualized review of each student, school districts would have to overhaul their student assignment policies to undertake the kind of holistic review that the Court upheld in Grutter. This would require the expenditure of substantial resources and administrative effort that a school district might not have available in its budget. Furthermore, as some have recognized, it would be ridiculous to require school administrators to undertake such detailed review of scores of very young schoolchildren.

The Court also could disapprove of a district’s student assignment plan that seeks to avoid racial isolation because it focuses on racial group membership rather than on individual students. Justice Kennedy’s approval of the use of a racial classification appears only to envision an approach “informed by Grutter” but tailored to the elementary and secondary context, in which a district undertakes “if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component.” This position clashes with the recognition by Justice Kennedy and the four dissenting justices that avoiding racial isolation is a compelling interest. The dispositive factor for avoiding racial isolation is race—unadorned and unaccompanied. Given this fact, James Ryan has recognized that the requirement for individualized, holistic review should not be applied to plans that seek to avoid racial isolation. [But it is115 unclear that five members of the Court would be willing to draw this distinction in a future case.]

QUESTIONS

1. Is Professor Robinson correct that the Court’s opinion in Parents Involved makes it is unlikely that school districts can justify the individualized consideration of race? Even if districts’ plans could meet strict scrutiny, is it likely that districts will go through the effort necessary to justify their actions? Would a slightly less effective plan that is more legally defensible be preferable to districts?

2. To the extent Professor Robinson’s assessment of the Court’s opinion is correct, did the Court make a mistake in disincentivizing the individual consideration of race or has it moved school districts toward better policies?

3. Does a student assignment plan designed to reduce racial isolation warrant different constitutional analysis than one designed to achieve diversity?

4. In 2013, the issue of diversity in higher education returned to the Supreme Court. While the Court left the holding in Grutter v. Bollinger untouched, the Court seemingly tightened the narrow tailoring analysis. The majority opinion emphasized that

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.”

Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2420 (2013) (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) and Grutter). To the surprise of many observers, when Fisher returned to the Supreme a few years later, the Court upheld the University’s admissions program as narrowly tailored to its compelling interest in diversity. First, while the state’s facially race-neutral policy of automatically admitting students who graduate in the top ten percent of their high school class had produced a certain level of diversity, the University demonstrated that the top ten percent policy had failed to produce a sufficient “critical mass” of diverse students necessary to obtain the educational benefits of diversity. Fisher v. Univ. of Texas at Austin, 2016 WL 3434399, at *11-12 (U.S. June 23, 2016). Second, while race only played a “minor” role in the overall admissions process, this was not a basis to conclude that the University could achieve its goals without considering race. Id. at *12. Third, the Court found that the University had attempted other race neutral alternatives, such as minority outreach and scholarship programs, in the past and they had been ineffective. Id. at 13. Finally, the Court rejected the notion that the University should just expand the top ten percent policy and abandon holistic review (which is where race is considered) altogether. “At its center, the Top Ten Percent Plan is a blunt116 instrument that may well compromise the University’s own definition of the diversity it seeks.…Wherever the balance between percentage plans and holistic review should rest, an effective admissions policy cannot prescribe, realistically, the exclusive use of a percentage plan.” Id. at *13-14.

Much of the discussion surrounding Parents Involved focuses on the benefits of integration and diversity for poor and minority students. Thus, some assume that extending benefits to minorities may harm whites, and the issue of integration becomes one of minorities versus nonminorities. Rob Garda emphasizes that whites receive significant benefits from integration as well and argues that the recognition of these benefits is the basis for redefining the politics of integration.

Robert A. Garda, Jr., The White Interest in School Integration

63 Fla. L. Rev. 599 (2011)

Racially diverse schools create academic and social benefits to white children that better prepare them for the multicultural world in which they will live and work. The interracial contact that occurs in integrated schools improves white students’ academic performance and, more importantly, develops their cross-cultural competence skills. Instead of perceiving efforts to racially diversify primary and secondary schools as solely for the advantage of minorities, white parents need to understand that their children will benefit as much, if not more, from these efforts.

By 2025, the country will be transformed: whites will be 58% of the population, while 42% will be racial minorities. Minorities will become the majority by 2042, and by 2050, the nation will consist of 54% “minorities.” Whites will simply be the largest minority group. The multicultural environment white children will navigate upon graduation is a product of the interconnected, global economy. As columnist Thomas Friedman explained in his popular book The World Is Flat, globalization is not coming—it is already here, influencing business and the skills individuals need to flourish in the new, flat economy. Globalization will bring different races and ethnicities from around the world to one click away from being the clients, customers, and business partners of America’s youth. Most American businesses already “operate and compete in a global environment, serving and working with people and cultures of all kinds.”

Globalization and changing domestic demographics mean America’s youth will be entering an unprecedented era of heterogeneity during their lives. Their political leaders, doctors, patients, lawyers, clients, co-workers, and business partners will be more racially diverse than anything experienced by previous generations. The ability to effectively operate in and navigate through this multiracial and multiethnic world and business environment requires cross-cultural communication and competence skills that their parents did not have to develop117 to succeed. Integrated schools, and only integrated schools, will equip children with these newly essential skills.

White parents should listen to the clarion call to racially integrate schools [because their] children’s future careers and earnings hinge on educating them in diverse classrooms today. [But w]hen whites think of affirmative action policies in colleges and universities or race-based student assignment policies in primary and secondary education, they think of the benefits to minorities. They believe that affirmative action policies in higher education provide minorities a “leg-up” to get into colleges and universities they otherwise would not attend. White families fail to see that the primary beneficiaries of these policies—as strange as it may initially sound—are in fact white children.

The benefits that inure to white students in racially integrated schools are twofold: improved learning outcomes and better preparation to navigate an increasingly multicultural marketplace. Five hundred fifty-three social scientists submitted an amicus brief in the Parents Involved case that noted that the opportunity to interact with students of different ethnic and racial backgrounds results in exposure to “different cultural knowledge and social perspectives.” [S]uch exposure “promotes complex thinking” and “enhance[s] critical thinking by exposing students to new information and understandings.” The research indicates that students faced with perspectives they have never encountered are forced to think through more alternatives and better articulate their reasoning, thereby improving their critical thinking skills. Students experiencing such interactions are more likely to engage in complex thinking as they process new information and cross-racial understandings. [Although it is subject to some debate, social science also indicates that the] expanded critical reasoning skills derived from a multiracial education often leads to higher math scores for white students.

But academic benefits are not the primary reason to integrate schools. The real benefit of multiracial schools to white students is the cross-cultural skills they impart—skills that will make children more employable and more successful in their future jobs. [T]here is virtually unanimous agreement that diverse educational environments better prepare white students for a multiracial work environment. The bad news is that most people, whites and minorities, harbor implicit racial stereotypes and biases. These inherent biases particularly harm minorities, but also work to the detriment of whites who harbor them. The good news is that students can become de-biased and develop cross-cultural competence in racially integrated schools.

[W]hite children’s future employers appreciate the cross-cultural competence that derives from interracial contact in integrated schools. The business community—from small businesses to Fortune 500 companies—agrees that whites educated in multiracial classrooms will be better, more productive, and effective professionals than whites educated in segregated settings. These businesses will be hiring products of integrated educational environments because, as the United States Department of Labor concluded, being able to function effectively in highly diverse settings will be a critical skill to succeed in U.S. business. Our children’s employers will be hiring applicants who have118 the ability to interact with and understand the various perspectives held by people of different races and ethnicities.

Eighty-nine major corporations filed briefs supporting the affirmative action program at the University of Michigan, and entities representing more than 2,800 companies filed briefs supporting voluntary integration in Parents Involved. Not one single business weighed in against the affirmative action policy at the University of Michigan or the race-based assignment plans in Louisville, Kentucky and Seattle, Washington.

QUESTIONS

1. What is the white interest in integrated schools and why does Garda believe emphasizing it is important? Is his argument persuasive?

2. In what ways did the Supreme Court pay or not pay attention to the white interest in integration in Parents Involved? If one accepted Garda’s argument, would it alter the doctrinal analysis of race-based integration?

2. Alternatives to Individualized Race-Based Assignments

Since Parents Involved, three circuit courts have issued opinions that explore the contours of generalized considerations of race and whether they trigger strict scrutiny. All three held that rational basis, not strict scrutiny, applies. The Fifth Circuit was the first to address the issue and was initially reluctant to apply rational basis. The trial court, relying on Justice Kennedy’s opinion, had refused to apply strict scrutiny to an assignment plan designed to maintain racial balance in the schools “because it ‘does not explicitly employ racial classifications’ and the plan assigns students to schools based on their ‘geographical location.’” Lewis v. Ascension Parish School Board, 662 F.3d 349 (5th Cir. 2011). Rather than affirm, the Fifth Circuit remanded the case for further factual findings to confirm that individual students’ race had not been considered. By the time the case returned to the Fifth Circuit on a second appeal, the Third and Sixth Circuits had held that strict scrutiny did not apply to plans that generally considered race, so long as they refrained from classifying and assigning individual students according to race. Spurlock v. Fox, 716 F.3d 383 (6th Cir. 2013); Doe v. Lower Merion School District, 665 F.3d 524 (3d Cir. 2011). Citing to those courts for support, the Sixth Circuit became the third court of appeals to explicitly hold that the consideration of “demographic data and projections” is distinct from “explicitly classif[ying] students by race” and “does not bring [a student assignment] plan within the ambit of Parents Involved, as that case addressed individualized student assignments that took into account the student’s race and the overall racial makeup of the school.” Lewis v. Ascension Parish School Board, 806 F.3d 344, 358 (5th Cir. 2015)

The Third Circuit in Doe v. Lower Merion, however, offers a fuller explanation as to why Justice Kennedy’s opinion in Parents Involved is controlling and does119 not require strict scrutiny in all integration cases. The Third Circuit directly addressed the potential conflict between Arlington Heights and Justice Kennedy’s concurrence in Parents Involved, concluding that neither Arlington Heights nor any other previous decision of the Court required the application of strict scrutiny simply because race was considered. As you read Lower Merion, note how the Third Circuit distinguishes discriminatory purpose from the mere consideration of race to achieve laudable goals. Just days before the Third Circuit issued its opinion, the Department of Education’s Office for Civil Rights and the Department of Justice released joint policy guidance that, while not as explicit, would have dictated the same result. United States Dept. of Justice & United States Dept. of Education, Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools (Dec. 2, 2011).

Doe v. Lower Merion School District

665 F.3d 524 (3d Cir. 2011)

Greenaway, Jr., Circuit Judge.

I. Background

[The court details the process by which school officials and community members developed a new student assignment plan. Various different student assignment plans were proposed and considered. Throughout the process, public officials were aware of the racial impacts that each would produce. None of the plans assigned any individual student to a school based on his or her race. Rather, the plans looked at the racial demographics of neighborhoods in assessing where attendance zones should be located. While the racial impacts were a consideration and achieving diversity was a goal, the district also paid special attention to ensuring the equalization of the overall enrollment at the high schools, utilizing elementary schools to their full capacity, and avoiding additional transportation costs. In fact, these nonracial factors were termed nonnegotiable goals. Consistent with these statements, the district rejected plans that did not achieve these goals. Likewise, the district rejected one plan because it did not foster diversity and another because it appeared to be based primarily on racial balancing. It ultimately adopted a plan, Proposal 3R, that achieved all of its goals. Plaintiffs argue that the consideration of race in this reassignment plan and its impact on those students from communities that otherwise would have been assigned to a different school is a violation of equal protection.]

III. Analysis

i. Level of Scrutiny

The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” The central purpose of the Clause “is to prevent the States from120 purposely discriminating between individuals on the basis of race.” A government action does not necessarily purposely discriminate merely because it is race-related. Crawford v. Bd. of Educ., 458 U.S. 527, 538 (1982) (“a distinction may exist between state action that discriminates on the basis of race and state action that addresses, in neutral fashion, race-related matters…the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution”). Thus, “[p]roof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.”

Precedent in this Court and the Supreme Court has established that “[i]ntentional discrimination can be shown when: (1) a law or policy explicitly classifies citizens on the basis of race; (2) a facially neutral law or policy is applied differently on the basis of race; or (3) a facially neutral law or policy that is applied evenhandedly is motivated by discriminatory intent and has a racially discriminatory impact.” [When racially discriminatory purpose is established, w]e apply strict scrutiny. However, “absent a racially discriminatory purpose, explicit or inferable, on the part of the [decisionmaker], the statutory distinction is subject only to rational basis review.” United States v. Frazier, 981 F.2d 92, 95 (3d Cir. 1992).

a. Intentional Discrimination Shown by Racial Classification

“The term racial classification ‘normally refers to a governmental standard, preferentially favorable to one race or another, for the distribution of benefits.’ ” “A statute or policy utilizes a ‘racial classification’ when, on its face, it explicitly distinguishes between people on the basis of some protected category.”

Plan 3R is facially race neutral, assigning students to schools based only on the geographical areas in which they live. The Plan, on its face, neither uses racial classification as a factor in student assignment nor distributes any burdens or benefits on the basis of racial classification. The lack of racial classification in Plan 3R distinguishes Plan 3R from the policies in every Supreme Court equal protection education case upon which Appellants rely in their brief. [I]n this manner, Plan 3R starkly differs from the policies at issue in Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, Gratz v. Bollinger, Grutter v. Bollinger, Regents of the Univ. of California v. Bakke,, Brown v. Bd. of Educ., McLaurin v. Oklahoma State Regents, and Sweatt v. Painter. In each of those cases, the school district or university policy at issue used racial classifications as the sole factor, or as one factor among many, to make determinations regarding student school assignments or admission to a higher education institution. In Bakke, the Court even noted that the policy “involves a purposeful, acknowledged use of racial criteria. This is not a situation in which the classification on its face is racially neutral, but has a disproportionate racial impact. In that situation, plaintiff must establish an intent to discriminate.”

Appellants repeatedly frame the central question in this case as whether “race was a factor,” or whether race was considered. Although Appellants argue that, if race is a factor in a decision, we must apply strict scrutiny, counsel for Appellants admitted at oral argument that being aware of or considering race when making some decisions can be proper within certain circumstances,121 including doing so to achieve a better racial composition within a school. In any event, these arguments are irrelevant to our inquiry. Appellants and the District Court conflate the consideration or awareness of race with (1) racial classifications and (2) racially discriminatory purpose. Equal protection law does not make the same conflation. As a result, both the District Court and Appellants improvidently believed that the appropriate level of scrutiny to apply was strict scrutiny.

A racial classification occurs only when an action “distributes burdens or benefits on the basis of” race. In United States v. Hays, 515 U.S. 737 (1995), the Court noted that the record contained “evidence tending to show that the legislature was aware of the racial composition of [the districts in which the plaintiffs lived],” but the Court also noted that “the legislature always is aware of race when it draws district lines.” “That sort of race consciousness does not lead inevitably to impermissible race discrimination” and proof of that race consciousness “in the redistricting process is inadequate to establish injury in fact.” Moreover, the Court noted that the justices had “never held that the racial composition of a particular voting district, without more, can violate the Constitution.”

In Arlington Heights, the Supreme Court noted that, “[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision,…judicial deference is no longer justified.” Racially discriminatory purpose means that the decisionmaker adopted the challenged action at least partially because the action would benefit or burden an identifiable group. Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). Thus, the mere awareness or consideration of race should not be mistaken for racially discriminatory intent or for proof of an equal protection violation.

Appellants also conflate a school assignment policy that explicitly classifies based on race with the consideration or awareness of neighborhood racial demographics during the development and selection of a policy. The former is a facially racial policy, such as the policies in Seattle, Gratz, Grutter, Bakke, Brown, McLaurin, and Sweatt. The consideration or awareness of race while developing or selecting a policy, however, is not in and of itself a racial classification. Thus, a decision maker’s awareness or consideration of race is not racial classification. Designing a policy “with racial factors in mind” does not constitute a racial classification if the policy is facially neutral and is administered in a race-neutral fashion.

When the Supreme Court, in Seattle, Grutter, and Bakke, has referenced applying strict scrutiny to a “plan that uses race as one of many factors,” it has meant just that—strict scrutiny should be applied to a school admissions or student assignment policy or plan that uses race as a factor to determine whether a student is admitted or assigned to a school. The Court has never held that strict scrutiny should be applied to a school plan in which race is not a factor merely because the decision makers were aware of or considered race when adopting the policy. When there is no racial classification in the plan, strict scrutiny is only applied if plaintiffs show discriminatory intent.

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The first alternative by which intentional discrimination can be shown—racial classification—is inapposite to Plan 3R and the facts of this case. Strict scrutiny analysis is not appropriate on this basis.

c. Intentional Discrimination Shown by Discriminatory Purpose for a Facially Neutral Policy

To establish government action within the third alternative, a plaintiff is “required to prove that the actions of…officials (1) had a discriminatory effect and (2) were motivated by a discriminatory purpose.”

Appellants have not provided any evidence that Plan 3R treats similarly situated individuals of a different race in a different manner. Two-thirds of the students redistricted to Harriton were students who were not African-Americans and who lived in the Affected Area or other areas redistricted to Harriton under plan 3R. Plan 3R does not treat black students in the Affected Area and North Ardmore similarly, nor does it treat white students in either area similarly to other white students or differently from the black students in the same area.

Even if we were to find that Plan 3R has a discriminatory impact, the District has plausibly explained any such impact on a neutral ground. The Board’s goals in redistricting included the Non-Negotiables of equalizing the enrollments of Harriton and LMHS and not increasing the number of buses required. The Community Values during redistricting included allowing students who walked to school to continue walking to school, minimizing travel-time for bused students, and to ensure that children were in comfortable learning environments.

In addition to these neutral bases for the selection of Plan 3R, the District Court noted other race-neutral explanations for the adoption of Plan 3R, including helping students attain educational excellence, [instituting a feeder pattern that would keep students together as they progressed to high school], and closing the achievement gap between students. Moreover, there is no evidence establishing that the District Court clearly erred when it found credible the Board members’ testimony that race was not the basis of their votes for Plan 3R.

To ascertain whether there was discriminatory intent in the development and selection of Plan 3R, Appellants and the District Court appear focused on the administrative history, especially on statements made by Board members and the information included in reports and presentations. Appellants pay particular attention to when racial demographics only or racial demographics in addition to other socioeconomic demographics were or were not included in report estimates, slide presentations, personal notes, and on the District’s website. Awareness of such data or omitting such data, however, does not constitute discriminatory intent. “[C]onscious awareness” of a racially disparate impact of a facially neutral policy is irrelevant to equal protection analysis. Additionally, the mere awareness of data regarding racial demographics under various Scenarios and Proposed Plans is not necessarily awareness of racially disparate impact. The racial data showed, under some Scenarios and Proposed Plans, that there would not be a racially disparate impact. For a facially neutral policy, awareness of a racially discriminatory impact is only relevant if the policy is adopted at least in part because of a racially discriminatory impact.

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While the statements upon which Appellants rely may indicate awareness or consciousness of race, the statements do not constitute discriminatory intent, i.e., that Plan 3R was developed or selected because it would assign benefits or burdens on the basis of race. Instead of being adopted for the purpose of discrimination, the statements indicate, if anything, that Board members and Administrators adopted Plan 3R in an attempt not to discriminate on the basis of race. Testimony that Scenario 1 was eliminated “due to inequitable racial balancing” could indicate that the Administration did not want to propose a plan that seemed to treat students differently on the basis of race, by having a disproportionate percentage of students of a certain race redistricted. Notably, the Administration decided not to formulate any proposed plans [that] would redistrict both areas with higher African-American populations, to [a single high school]. Thus, the only Scenarios selected to develop into proposed plans were those that did not treat the two areas with the highest African-American populations in the same manner. Because all of the Scenarios assigned students geographically, no Scenario or Proposed Plan treated similarly situated African-American students differently from other students. Moreover, the District eliminated the Scenarios that arguably treated differently situated African-American students similarly, by assigning both areas with higher African-American populations to the same school.

Given these circumstances, it is nearly inconceivable that the District intended to discriminate on the basis of race. [Board Member] DiBonaventuro’s September 2008 email reaffirms the anti-discriminatory goals of the redistricting process. In her email, she stated that the Board should emphasize that it is not trying to increase Harriton’s diversity, but that it, instead, is trying to ensure numerically equal total student enrollments at both high schools.

Board and Administrator references to “diversity” do not imply a discriminatory purpose. On the contrary, references to diversity in the context of this facially neutral policy implied that decisionmakers did not want the selected plan to have a racially disproportionate impact. Because the African-American students were “more concentrated” geographically, assigning students based on geography could easily lend itself to disproportionate impact unless the Board members were aware of the demographics of the areas during the redistricting process.

Plan 3R has been applied consistently, regardless of race, and the majority of Board members’ discussions regarding Lower Merion redistricting focused on neutral factors: (a) equalizing the populations at the two high schools, (b) minimizing travel time and transportation costs, (c) fostering educational continuity, and (d) fostering walkability.

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Thus, none of the three alternatives necessary to show intentional discrimination and to trigger strict scrutiny is applicable to Plan 3R.

[After rejecting strict scrutiny, the court easily concludes that the plan meets rational basis review. The plan is rationally related to achieving four different legitimate goals: “(a) equalizing the populations at the two high schools, (b) minimizing travel time and transportation costs, (c) fostering educational continuity, and (d) fostering walkability.”]

NOTES AND QUESTIONS

1. Was Lower Merion’s school redistricting race conscious or race neutral? Did it rely on race as a factor in assigning students to schools?

2. In Parents Involved, Justice Kennedy suggested that districts might achieve racial integration in one of three ways: by classifying individual students by race, by considering race but without classifying individual students, and by adopting race-neutral classifications (like socioeconomic status) or policies that might correlate with race. Into which of these categories does Lower Merion’s plan fall?

3. Justice Kennedy indicated that plans that only consider race in a general way and do not rely on individual race classification would likely not trigger strict scrutiny. His refusal to firmly exclude all potential examples from strict scrutiny indicates that he could imagine reasons why some plans might be objectionable. What might those reasons be? Does Lower Merion’s plan implicate any concerns that should trigger strict scrutiny?

4. The Third Circuit in Lower Merion distinguishes between those instances where race is considered (but there is no discriminatory purpose) and those instances where race is a motivating factor and the purpose is discriminatory. Is this distinction convincing? How can one know what the real purpose is or whether that purpose is legitimate? The Court’s previous affirmative action cases have demanded strict scrutiny in all instances because the Court indicates strict scrutiny is necessary to separate the legitimate from the illegitimate. See, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 226 (1995).

5. What was the racial goal or consideration in this case: to integrate, to diversify, or to racially balance? If the plan were subject to strict scrutiny, what would the compelling interest be?

6. From a practical standpoint, is this plan better or worse than those in Parents Involved? Could Lower Merion have achieved its goals through any other means?

7. While the application of rational basis to the student assignment plans in Lower Merion and Lewis v. Ascension Parish School Board, 806 F.3d 344 (5th Cir. 2015), were huge victories for school integration, the decision Spurlock v. Fox, 716 F.3d 383 (6th Cir. 2013), involved a challenge to a reassignment and rezoning plan that plaintiffs argued led to resegregation in Nashville, Tennessee. Because that rezoning did not classify individual students by race, the court held the district’s actions were subject to no more scrutiny than those in Lower Merion and Lewis. In other words, the benefit of rational basis for integration plans comes with the continued burden of proving intentional segregation in resegregating districts. This burden is explored further at the end of this chapter.

The school district in Lower Merion considered race, among other factors, in determining where to draw school attendance zones. Instead of considering race in drawing attendance zones, some school districts have instituted choice programs that consider race among other factors in making student assignments. In125 this respect, these plans are similar to the assignment plans in Parents Involved. But unlike the plans in Parents Involved, these other districts do not consider an individual student’s race in admissions. Instead, they consider the racial and other demographic characteristics of a student’s neighborhood. The following problem asks you to assess the constitutional significance of this distinction.

PROBLEM

Brevard School District adopted a new school diversity assignment plan for its elementary schools. The district believed that socioeconomic and racial diversity would enrich the education experiences of students, encourage higher educational and occupational aspirations, enhance critical thinking skills, facilitate equitable resource distribution, reduce the negative effects of racial and social isolation, improve intergroup relationships, and foster pluralistic values.

The plan achieves diversity through a choice plan rather than mandatory assignments or redrawing attendance zones. The district asks parents rank their choice of schools each year. Among those schools that are oversubscribed, the district prioritizes students based on a diversity rating, with the goal of ensuring that each elementary school reflects the racial and socioeconomic diversity of the total elementary school population. A student’s diversity rating, however, is not based on the student’s individual race or class, but on the demographics of the neighborhood in which the student lives. Those demographics include the average household income, the average education level of adults, and the percentage of students of color in the neighborhood.

Is this assignment plan constitutional? Consider (1) whether this assignment plan is more similar to Lower Merion’s or Seattle’s and Louisville’s, or simply distinct from both; (2) which of these assignment plans would be the most practicable, transparent, and politically acceptable to implement; (3) whether Brevard School District is using its diversity rating as proxy for race in an attempt to skirt the explicit holdings of previous cases; and (4) whether this plan would be subject to rational basis or strict scrutiny.

In addition, if you find that this plan is constitutional, whereas the plans in Parents Involved were not, has the Supreme Court elevated form over function? Or is there a meaningful distinction between classifying individual students by race and classifying a student’s neighborhood by race?

Richard D. Kahlenberg, Rescuing Brown v. Board of Education: Profiles of Twelve School Districts Pursuing Socioeconomic School Integration

(2007)

Over the past fifteen years a growing number of districts have begun using a student’s family income as a factor deciding where students should attend school. Today, roughly forty districts, educating 2.5 million students, are known to look at family income as a way to assign students. [S]ocioeconomic126 integration plans vary dramatically in detail, and certain programs appear to be far more successful than others. Two major lessons emerge from this new movement. First, system-wide goals are more effective in producing achievement results and racial integration than more modest goals. While Wake County[, North Carolina,] has had success with its district-wide 40 percent cap on low-income students, some districts with more passive programs have been far less successful. For example, nearby Charlotte-Mecklenburg, North Carolina, uses socioeconomic status as a factor in approving and disapproving student transfers. But because there is no overall goal of achieving a rough economic parity in the schools, or mechanisms in place to achieve that, the schools are resegregating by both class and race.

Second, using public school choice and magnet schools tends to be more politically acceptable than redrawing school boundaries to achieve socioeconomic integration. School districts have learned a great deal about how to integrate students voluntarily with different backgrounds since the crisis over implementing court-ordered busing in the 1970s. Today, most successful districts rely primarily on student assignment systems that utilize magnet schools and public school choice, rather than mandatory assignment and compulsory busing, to achieve the goal of socioeconomic integration. The biggest public backlash against integration tends to come from compulsory redistricting, which offers parents no say in the matter of where their children attend school and offers little incentive for middle-class families to support integration.

In many of the communities that attempt to pursue socioeconomic integration, the politics have been heated. The program requires heavy political lifting and genuine leadership. But many parents, educators, and business and religious leaders know intuitively what the research has told us: separate schools for rich and poor are inherently unequal. School board members that have the fortitude to tackle this problem likely will face opposition from some middle-class parents who believe that with their home selection, they have “purchased” the right to send their children to economically homogeneous neighborhood public schools. The best thing going for socioeconomic integration politically is that it works educationally, raising the academic achievement of low-income students while maintaining high levels of achievement for middleclass children.

Why School Districts Pursue Socioeconomic School Integration

The major reason school districts are pursuing socioeconomic integration is that these districts are acting on forty years of research that shows that the single most important predictor of academic achievement is the socioeconomic status of the family a child comes from, and the second most important predictor is the socioeconomic makeup of the school she attends. All students—rich, poor, white, black, Latino, and Asian—perform significantly better in schools with strong middle-class populations than they do in high poverty schools. Virtually everything that educators talk about as desirable in a school—high standards and expectations, good teachers, active parents, a safe and orderly environment, a stable student and teacher population—are more likely to be found in127 economically mixed schools than in high-poverty schools. While it is possible to make schools with high concentrations of poverty work[,] it is extremely uncommon. A study by University of Wisconsin professor Douglas Harris, for example, found that middle-class schools are twenty-two times as likely to be consistently high performing as high-poverty schools.

Middle-class schools perform better in part because middle-class students on average receive more support at home and come to school better prepared. But the vastly different educational environments typically found in middle-class and high-poverty schools also have a profound effect on achievement. On the 2005 National Assessment of Educational Progress (NAEP) given to fourth graders in math, for example, low-income students attending more affluent schools scored substantially higher (239) than low-income students in high-poverty schools (219). This twenty-point difference is the equivalent of almost two years of learning. Indeed, low-income students given a chance to attend more-affluent schools performed more than half a year better, on average, than middle-income students who attend high-poverty schools (231). At the high school level, University of California professor[s] found that a school’s socioeconomic status had as much impact on the achievement growth of high school students as a student’s individual economic status.

Why does it matter to student achievement if a child attends a middle-class or high-poverty school? While money matters a great deal in education, people matter more. Consider the three main sets of actors in a school: students, parents, and faculty (teachers and principals). Research suggests that students learn a great deal from their peers, so it is an advantage to have classmates who are academically engaged and aspire to go on to college. Peers in middle-income schools are more likely to do homework and graduate, and less likely to watch television and cut class—all of which have been found to influence the behavior of classmates. Middle-class schools report half as many disorder problems as low-income schools, so more learning goes on. It is also an advantage to have high-achieving peers, whose knowledge is shared informally with classmates all day long. Middle-class peers come to schools with twice the vocabulary of low-income children, for example, so any given child is more likely to expand his vocabulary in a middle-class school through informal interaction.

Parents are also an important part of the school community, and research finds that it is an advantage to attend a school where parents are actively involved, volunteer in the classroom, and hold school officials accountable. Research repeatedly finds that middle-class parents are more likely to be involved in schools. Not having to work three jobs and having a car makes it easier to help out, so it is not surprising that, in middle-class schools, parents are four times as likely to be members of the Parent-Teacher Association (PTA).

Finally, research finds that the best teachers, on average, are attracted to middle-class schools. Teachers in middle-class schools are more likely to be licensed, to be teaching in their field of expertise, to have high teacher test scores, to have greater teaching experience, and to have more formal education. Teachers generally consider it a promotion to move from high-poverty to middle-class schools, and many of the best teachers transfer into middle-class schools at the first opportunity. Moreover, teachers in middle-class schools are128 more likely to have high expectations. Research has found that the grade of C in a middle-class school is the same as a grade of A in a high-poverty school, as measured by standardized tests results. Middle-class schools are also more likely to offer Advanced Placement classes and high-level math.

Are middle-class children hurt by attending economically mixed schools? The research suggests that sprinkling a few middle-class children into a school of highly concentrated poverty may hurt their academic achievement, but so long as a critical mass of the students are middle class (not eligible for free and reduced price lunch), middle-class student achievement does not decline with the presence of some low-income students. Studies find that integration is not a zero-sum game, in which gains for low-income students are offset by declines in middle-class achievement. This is true in part because the majority is what sets the tone in a school, and because research finds that middle-class children are less affected by school influences (for good or ill) than low-income children.

NOTES AND QUESTIONS

1. Are districts pursuing socioeconomic integration simply to achieve racial integration and thus using socioeconomic status as a proxy for race? If so, do these plans violate equal protection or Title VI? Wake County, North Carolina, is one of the most publicized examples of a district that adopted a socioeconomic integration plan. The purpose of the plan was to ensure that “no more than 40 percent of its student body would be eligible for free or reduced price lunch and no more than 25 percent of its student body would be reading below grade level (averaged over two years).” Richard D. Kahlenberg, Rescuing Brown v. Board of Education: Profiles of Twelve School Districts Pursuing Socioeconomic School Integration (2007). The plan was adopted shortly after it abandoned its race-conscious plan in response to perceived changes in federal law. Id. Some charged that the district was using socioeconomic status as a proxy for race and filed a race discrimination complaint with the Office for Civil Rights, but the OCR rejected the claim. Id. Consistent with the research, Wake County has always maintained that it operated the plan for educational reasons, namely the improved academic achievement of low-income students. Id. Over the course of years, it has achieved this goal. Compared to similar districts, Wake County’s low-income students are among the highest achieving in the state on end-of-year exams and have the second-highest graduation rate in the nation. Id.

After a change in school board composition in 2009, the Wake County School Board voted to abandon the plan and return to neighborhood school assignments. A coalition of organizations and students responded by filing a complaint with the OCR. They alleged that the board’s decision to end the socioeconomic plan and adopt neighborhood schools was racially motivated. If integration (by race or poverty) is not constitutionally required, how can the abandonment of it be unconstitutional? A year later, the school board composition changed again and appeared poised to return to a plan designed to foster some level of socioeconomic integration.

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2. Kahlenberg and others urge socioeconomic plans are a good alternative to race based plans in light of the Supreme Court’s decision in Parents Involved. Given the recent decisions by the Third, Fifth, and Sixth Circuit Courts of Appeals, is there any legal reason to prefer a socioeconomic plan to a race plan? Are there any practical reasons? Are there any educational reasons?

3. One of the main critiques of socioeconomic plans has been that they do not achieve sufficient racial integration. Wake County’s plan produced significant socioeconomic and racial integration, but its demographics were well suited to this result, as race and socioeconomic status have a significantly stronger correlation there than in other metropolitan areas. Brief of 553 Social Scientists as Amici Curiae in Support of Respondents App. at 49, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (Nos. 05-908 & 05-915). Research has suggested that in other metropolitan areas, socioeconomic status alone, although producing socioeconomic integration, would produce only modest levels of racial desegregation. Sean F. Reardon, John T. Yun & Michael Kurlaender, Implications of Income-Based School Assignment Policies for Racial School Segregation, 28 Educ. Evaluation & Pol’y Analysis 49, 50 (2006). Does it matter whether socioeconomic integration produces racial integration? Another option is to rely on socioeconomic status and race to produce integration in regard to both. This is the approach Berkeley, California, has taken. See Am. Civ. Rts. Found. v. Berkeley Unified Sch. Dist., 90 Cal. Rptr. 3d 789 (Cal. App. 2009).

4. For further analysis of constitutional means by which to achieve integration, see United States Dep’t. of Justice & United States Dept. of Education Guidance on the Voluntary Use of Race to Achieve Diversity and Avoid Racial Isolation in Elementary and Secondary Schools (Dec. 2, 2011).

3. Desegregation Based on State Law

The least-explored method through which to desegregate schools is state-based litigation. The theories in state court are far different from those in federal court. As an initial matter, fulfillment of one’s duty to desegregate under the federal Constitution is not necessarily sufficient to comply with a state constitutional obligation. Unlike the federal Constitution, state constitutions include explicit references to and guarantees of education. William E. Thro, Note, To Render Them Safe: The Analysis of State Constitutional Provisions in Public School Finance Reform Litigation, 75 Va. L. Rev. 1639, 1661 (1989). Thus, education receives broader protection in state court. In addition, the Supreme Court has held that the federal Constitution prohibits only intentional segregation. Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973). In contrast, states can prohibit de facto segregation if they choose.

Connecticut provides the most important example. In Sheff v. O’neill, 678 A.2d 1267 (Conn. 1996), the Connecticut Supreme Court held that de facto school segregation in Hartford’s schools violated the state constitution. The court reasoned that racial isolation in high-poverty schools denied students equal educational opportunity. The remedy included the development of interdistrict magnet schools and continuation of an interdistrict transfer program that130 enabled students who lived in Hartford to attend school in the surrounding suburbs.

The second state to explore constitutional challenges to segregation under its state constitution was Minnesota. In the mid-1990s, two different cases were filed against the state, Xiong v. State and NAACP v. Minnesota, which were later consolidated. No. 95-14800 (Minn. Dist. Ct. filed 1995). Both charged that the concentrated poverty and racial segregation that the state maintained in its schools interferes with the delivery of a constitutionally adequate education. Plaintiffs emphasized that “68 percent of Minneapolis students were students of color and 66 percent were eligible for free or reduced price lunch, compared with a statewide population that was 14 percent minority and 26 percent FARM eligible.” Richard D. Kahlenberg, All Together Now 176 (2001). Relying on much of the research described above, the plaintiffs claimed that segregation in Minneapolis schools was inhibiting their ability to obtain an adequate education and that low-income students were twice as likely to achieve at high levels in suburban schools. Id. Because the state settled the case on the eve of trial, Minnesota’s supreme court never ruled on the merits of the claim.

In late 2015, however, plaintiffs in Minnesota sought to revive the theory to challenge what they called hypersegregation in Minneapolis. Of particular concern was the resegregation occurring through its rapidly expanding charter schools in the metropolitan area. Their complaint stated that the metropolitan area

contains 131 charter schools, over 80 percent of which are segregated by race, socioeconomic status, or both. [Nearly seventy charter schools] are either more than 95 percent students of color or more than 80 percent white students. Nearly a third (42 of 131) of charters in the Twin Cities are more than 95 percent students of color. In addition, there is a growing pattern in the suburbs of predominantly white charter schools locating near more racially diverse traditional schools. In 2013, 67 percent of suburban charters (32 out of 48 schools) were predominantly white (defined as more than 80 percent white students) compared to just 44 percent of traditional schools in the suburbs. More than half of predominantly white suburban charters were located in the attendance areas of traditional schools that were significantly more racially diverse. This figure has nearly tripled in the previous five years.

Complaint, Cruz-Guzman v. State of Minnesota, Nov. 5, 2015.

The only other reported case addressing these issues is from New York. There the state’s highest court rejected a claim that poverty segregation violated the state constitution. Paynter v. State, 797 N.E.2d 1225, 1229 (N.Y. 2003). In other states, the issue remains open. A full discussion of these cases, including the underlying legal theories, is reserved for the next chapter because the holdings grow out of school finance precedent rather than desegregation. But they are important to note here because they offer a serious alternative to federal desegregation law.

While sound legal theories may still exist for desegregation under state law, the Court’s opinion in Parents Involved potentially puts federal and state law in conflict. A district that is desegregating under state law would still have to establish that its plan is justified by a compelling interest and narrowly tailored.131 Presumably, the district could easily fit its plan within the compelling interests of diversity or avoiding racial isolation, but narrow tailoring could be more difficult if the state constitution imposed broad affirmative obligations. For instance, an interdistrict transfer program that granted transfers based primarily on race would appear to violate the Court’s holding in Parents Involved. Of course, the state could implement any number of other methods discussed in the previous section, but those methods might be less effective or consume more resources.

Should federal law require states to alter their remedies under these circumstances? Does desegregating under state law justify an exception to the general rule of strict scrutiny for racial classifications? In his dissent in Parents Involved, Justice Breyer intimated that this sort of state-based desegregation would be a compelling interest, but the majority skirted the issue. Scholars have argued that phrasing the question as whether complying with state law is a compelling interest misses the point. Desegregation under state law is not the pursuit of desegregation as an end in and of itself. Rather, it is to achieve quality education for all, particularly those who are otherwise denied a quality education. Thus, the argument is not that state law can, as a general matter, authorize unconstitutional conduct, but that desegregative actions pursuant to state law are compelling because they are designed to deliver quality education. Moreover, if creating diverse environments to improve the quality of education can be a compelling interest, then voluntary desegregation that is essential to quality education should be compelling as well. See, e.g., Derek W. Black, In Defense of Voluntary Desegregation: All Things Are Not Equal, 44 Wake Forest L. Rev. 107, 114-122 (2009); Tiffani Darden, Defining Quality Education as a Government Interest: The U.S. Supreme Court’s Refusal to “Play Nice” with the Executive Branch, Congress, State Supreme Courts, and the Community Voice, 14 U. Pa. J. Const. L. 661 (2011).

C. RACIAL DISPARITIES OUTSIDE OF DESEGREGATION

Racial segregation and diversity involve but a subset of the law governing racial equity in education. Once a school district is declared unitary or if it was never subject to desegregation, an entirely different set of legal precedent applies. Because so few districts are currently operating under court orders to desegregate, this different set of legal principles is the dominant framework for modern claims of racial inequity in schools..

Plaintiffs can challenge racial disparities under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. In a noneducation case, the Court in Village of Arlington Heights v. Metro. Hous. Dev. Corp. held that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact. ‘Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.’ Proof of racially discriminatory intent or purpose is required to show a violation132 of the Equal Protection Clause.” 429 U.S. 252, 264-265 (1977). The Court, however, was clear that a plaintiff does not have “to prove that the challenged action rested solely on racially discriminatory purposes,” or even that discrimination was the “dominant” or “primary” purpose. Id. at 265. Rather, it is enough to show that discriminatory purpose was one of the motivating factors in the official decision.

Evidence of discriminatory purpose in the various areas of educational inequality is rarely obvious. Unlike school segregation, which was mandated by law or openly pursued even in the absence of legal mandates, few school systems today would openly engage in blatant discrimination. Moreover, discriminatory actions that lead to racial inequity are less often motivated by the sort of animus that motivated segregation. Rather, today racial discrimination is more likely to be the result of subtle or unconscious biases, on which a state actor may not even realize he is acting. Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. Rev. 1241, 1276 (2002); Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 335 (1987). Thus, establishing that race was a factor in an official action, particularly if race was not the dominant factor, is challenging.

In Arlington Heights, the Court recognized that “whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available” and that disparate impact of the official action “may provide an important starting point.” 429 U.S. at 266. Sometimes that impact is so disparate that “a clear pattern, unexplainable on grounds other than race, emerges” even though the official action is neutral on its face. Most often, however, it is not and plaintiffs must look to circumstantial evidence. Although not always helpful in the modern context, the Court has suggested the relevance of (1) the “historical background of the decision…particularly if it reveals a series of official actions taken for invidious purposes”; (2) “[t]he specific sequence of events leading up to the challenged decision”; (3) “[d]epartures from the normal procedural sequence”; and (4) “[s]ubstantive departures…, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.” Id. at 267-268.

Plaintiffs have also asserted claims solely on disparate impact based on federal regulations that prohibit disparate impact in educational programs. Traditionally, lower courts interpreted the Supreme Court’s decision in Guardians Ass’n v. Civil Service Commission, 463 U.S. 582 (1983), as permitting a private cause of action to enforce these regulations. See, e.g., Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 70 (1992); Alexander v. Choate, 469 U.S. 287, 292-296 (1985); N.Y. Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995); Roberts v. Colo. Bd. of Agric., 998 F.2d 824, 832 (10th Cir. 1993). Those claims proceeded under a three-pronged approach. First, a plaintiff must make out a prima facie case of disparate impact, meaning that a facially neutral practice has a racially disproportionate effect. See, e.g., Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984). Some courts have imposed high burdens on plaintiffs in establishing the disparate impact, requiring evidence that the impact has a statistical significance of more than two or three standard deviations. See, e.g.,133 G.I. Forum v. Tex. Educ. Agency, 87 F. Supp. 2d 667, 679 (W.D. Tex. 2000) (citing Castaneda v. Partida, 430 U.S. 482 (1977)). Most courts, however, have required plaintiffs to establish only that the policy does, in fact, disproportionately harm or exclude minorities, thus refraining from requiring any specific level of disproportionality. See, e.g., Cureton v. NCAA, 37 F. Supp. 2d 687, 697 (E.D. Pa. 1999) (“no rigid mathematical threshold of disproportionality…must be met to demonstrate a sufficiently adverse impact”).

Second, if a disparate impact is demonstrated, the burden shifts to the defendant to establish that the policy is justified by an educational necessity. See, e.g., Debra P. v. Turlington, 644 F.2d 397, 407 (5th Cir. 1981); Cureton, 37 F. Supp. 2d at 697. But courts have tended to be deferential to schools regarding educational necessity. For instance, the Eleventh Circuit in Georgia State Conference of Branches of NAACP v. State of Georgia, 775 F.2d 1403, 1418-1419 (11th Cir. 1985), accepted the schools’ pedagogical interest in ability grouping as a justification for the disparate impact it caused, without assessing whether the ability-grouping process actually reflected student ability. Likewise, the district court in G.I. Forum v. Texas Education Agency was explicit in its deference, writing that “[t]he word ‘necessity,’ as an initial matter is somewhat misleading; the law does not place so stringent a burden on the defendant as that word’s common usage might suggest.” 87 F. Supp. 2d at 679. Rather, the defendant need only show a “manifest relationship between the [policy] and a legitimate educational goal.” Id. Under the final prong of the disparate impact analysis, even if the school demonstrates an educational necessity, the plaintiff may prevail by demonstrating that an equally effective alternative practice would result in less racial disproportionality or proving that the legitimate practices are a pretext for discrimination. See, e.g., Georgia State NAACP, 775 F.2d at 1403.

This legal theory, however, came under attack in Alexander v. Sandoval, 532 U.S. 275 (2001). In Sandoval, the Court held that no private cause of action exists to enforce disparate impact regulations. In doing so, the Court drew a fine distinction. The Court did not challenge the validity of the disparate impact regulations themselves; it only rejected the right of individuals to bring lawsuits to enforce the regulations in court. Thus, the regulations are still presumptively valid and the OCR can enforce them pursuant to its normal statutory powers, which include terminating federal funding or recommending that the Department of Justice initiate a suit. 42 U.S.C. §2000d(1) (2006).

Alexander v. Sandoval

532 U.S. 275 (2001)

Justice Scalia delivered the opinion of the Court.

Section 601 of [Title VI of the Civil Rights Act of 1964] provides that no person shall, “on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination134 under any program or activity” covered by Title VI. Section 602 authorizes federal agencies “to effectuate the provisions of [§601]…by issuing rules, regulations, or orders of general applicability,” and the DOJ in an exercise of this authority promulgated a regulation forbidding funding recipients to “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.…”

We do not inquire here whether the DOJ regulation was authorized by §602, or whether the courts below were correct to hold that the [state policy in question] had the effect of discriminating on the basis of national origin. The petition for writ of certiorari raised, and we agreed to review, only the question posed in the first paragraph of this opinion: whether there is a private cause of action to enforce the regulation.

For purposes of the present case, however, three aspects of Title VI must be taken as given. First, private individuals may sue to enforce §601 of Title VI and obtain both injunctive relief and damages. Second, §601 prohibits only intentional discrimination. In Guardians Assn. v. Civil Serv. Comm’n of New York City (1983), the Court made clear that under Bakke only intentional discrimination was forbidden by §601. What we said in Alexander v. Choate (1985), is true today: “Title VI itself directly reach[es] only instances of intentional discrimination.” Third, we must assume for purposes of deciding this case that regulations promulgated under §602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under §601. Though no opinion of this Court has held that, five Justices in Guardians voiced that view of the law at least as alternative grounds for their decisions, and dictum in Alexander v. Choate is to the same effect. These statements are in considerable tension with the rule of [Regents of University of California v.] Bakke and Guardians that §601 forbids only intentional discrimination, but petitioners have not challenged the regulations here. We therefore assume for the purposes of deciding this case that the DOJ and DOT regulations proscribing activities that have a disparate impact on the basis of race are valid.

We do not doubt that regulations applying §601’s ban on intentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, and it is therefore meaningless to talk about a separate cause of action to enforce the regulations apart from the statute. [But it] is clear now that the disparate-impact regulations do not simply apply §601—since they indeed forbid conduct that §601 permits—and therefore clear that the private right of action to enforce §601 does not include a private right to enforce these regulations. That right must come, if at all, from the independent force of §602. As stated earlier, we assume for purposes of this decision that §602 confers the authority to promulgate disparate-impact regulations; the question remains whether it confers a private right of action to enforce them. If not, we must conclude that a failure to comply with regulations promulgated under §602 that is not also a failure to comply with §601 is not actionable.

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Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.

We therefore begin our search for Congress’s intent with the text and structure of Title VI. Section 602 authorizes federal agencies “to effectuate the provisions of [§601]…by issuing rules, regulations, or orders of general applicability.” It is immediately clear that the “rights-creating” language so critical to the Court’s analysis in Cannon [v. University of Chicago] of §601 is completely absent from §602. Whereas §601 decrees that “[n]o person…shall…be subjected to discrimination,” the text of §602 provides that “[e]ach Federal department and agency…is authorized and directed to effectuate the provisions of [§601].” Far from displaying congressional intent to create new rights, §602 limits agencies to “effectuat[ing]” rights already created by §601. And the focus of §602 is twice removed from the individuals who will ultimately benefit from Title VI’s protection. Statutes that focus on the person regulated rather than the individuals protected create “no implication of an intent to confer rights on a particular class of persons.” Section 602 is yet a step further removed: It focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating. [Section] 602 is “phrased as a directive to federal agencies engaged in the distribution of public funds[.]” When this is true, “[t]here [is] far less reason to infer a private remedy in favor of individual persons[.]”

Nor do the methods that §602 goes on to provide for enforcing its authorized regulations manifest an intent to create a private remedy; if anything, they suggest the opposite. Section 602 empowers agencies to enforce their regulations either by terminating funding to the “particular program, or part thereof,” that has violated the regulation or “by any other means authorized by law[.]” No enforcement action may be taken, however, “until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.” And every agency enforcement action is subject to judicial review. If an agency attempts to terminate program funding, still more restrictions apply. The agency head must “file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action.” And the termination of funding does not “become effective until thirty days have elapsed after the filing of such report.” Whatever these elaborate restrictions on agency enforcement may imply for the private enforcement of rights created outside of §602, they tend to contradict a congressional intent to create privately enforceable rights through §602 itself. The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.

Both the Government and respondents argue that the regulations contain rights-creating language and so must be privately enforceable, but that argument skips an analytical step. Language in a regulation may invoke a private136 right of action that Congress through statutory text created, but it may not create a right that Congress has not. Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice but not the sorcerer himself.

Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under §602.8. We therefore hold that no such right of action exists.

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

In 1964, as part of a groundbreaking and comprehensive civil rights Act, Congress prohibited recipients of federal funds from discriminating on the basis of race, ethnicity, or national origin. Pursuant to powers expressly delegated by that Act, the federal agencies and departments responsible for awarding and administering federal contracts immediately adopted regulations prohibiting federal contractees from adopting policies that have the “effect” of discriminating on those bases. At the time of the promulgation of these regulations, prevailing principles of statutory construction assumed that Congress intended a private right of action whenever such a cause of action was necessary to protect individual rights granted by valid federal law. Relying both on this presumption and on independent analysis of Title VI, this Court has repeatedly and consistently affirmed the right of private individuals to bring civil suits to enforce rights guaranteed by Title VI. A fair reading of those cases, and coherent implementation of the statutory scheme, requires the same result under Title VI’s implementing regulations.

Giving fair import to our language and our holdings, every Court of Appeals to address the question has concluded that a private right of action exists to enforce the rights guaranteed both by the text of Title VI and by any regulations validly promulgated pursuant to that Title, and Congress has adopted several statutes that appear to ratify the status quo.

Underlying the majority’s dismissive treatment of our prior cases is a flawed understanding of the structure of Title VI and, more particularly, of the relationship between §§601 and 602. On the surface, the relationship between §§601 and 602 is unproblematic—§601 states a basic principle [prohibiting discrimination], §602 authorizes agencies to develop detailed plans for defining the contours of the principle and ensuring its enforcement. In the context of federal civil rights law, however, nothing is ever so simple.

Section 601 does not stand in isolation, but rather as part of an integrated remedial scheme. Section 602 exists for the sole purpose of forwarding the antidiscrimination ideals laid out in §601. The majority’s persistent belief that the two sections somehow forward different agendas finds no support in the statute. Nor does Title VI anywhere suggest, let alone state, that for the purpose of determining their legal effect, the “rules, regulations, [and] orders137 of general applicability” adopted by the agencies are to be bifurcated by the Judiciary into two categories based on how closely the courts believe the regulations track the text of §601.

What makes the Court’s analysis even more troubling is that our cases have already adopted a simpler and more sensible model for understanding the relationship between the two sections. For three decades, we have treated §602 as granting the responsible agencies the power to issue broad prophylactic rules aimed at realizing the vision laid out in §601, even if the conduct captured by these rules is at times broader than that which would otherwise be prohibited.

This understanding is firmly rooted in the text of Title VI. As §602 explicitly states, the agencies are authorized to adopt regulations to “effectuate” §601’s antidiscrimination mandate. The plain meaning of the text reveals Congress’ intent to provide the relevant agencies with sufficient authority to transform the statute’s broad aspiration into social reality. So too does a lengthy, consistent, and impassioned legislative history.

This legislative design reflects a reasonable—indeed inspired—model for attacking the often-intractable problem of racial and ethnic discrimination. On its own terms, the statute supports an action challenging policies of federal grantees that explicitly or unambiguously violate antidiscrimination norms. With regard to more subtle forms of discrimination (such as schemes that limit benefits or services on ostensibly race-neutral grounds but have the predictable and perhaps intended consequence of materially benefiting some races at the expense of others), the statute does not establish a static approach but instead empowers the relevant agencies to evaluate social circumstances to determine whether there is a need for stronger measures. Such an approach builds into the law flexibility, an ability to make nuanced assessments of complex social realities, and an admirable willingness to credit the possibility of progress.

The “effects” regulations at issue in this case represent the considered judgment of the relevant agencies that discrimination on the basis of race, ethnicity, and national origin by federal contractees are significant social problems that might be remedied, or at least ameliorated, by the application of a broad prophylactic rule. Given the judgment underlying them, the regulations are inspired by, at the service of, and inseparably intertwined with §601’s antidiscrimination mandate. Contrary to the majority’s suggestion, they “appl[y]” §601’s prohibition on discrimination just as surely as the intentional discrimination regulations the majority concedes are privately enforceable.

NOTES AND QUESTIONS

1. What are the differences between disparate impact and intentional discrimination? What common goals might disparate impact and intentional discrimination prohibitions serve? Can intentional discrimination and bias be eliminated without disparate impact or analogous prophylactic prohibitions? Based on your answers to the foregoing questions, are intentionally138 discriminatory policies and those that have a racially disparate impact as distinct as the majority argues?

2. Even if disparate impact and intentional discrimination are distinct, can disparate impact regulations validly further Title VI’s prohibition on discrimination? Why does the Court reject this argument?

3. Can the Court’s holding that no private action exists for disparate impact regulations be reconciled with the notion that disparate impact regulations are valid exercises of agency authority? In other words, does it make sense that private individuals cannot enforce disparate impact regulations in court but agencies can enforce them administratively? If a defendant brought a challenge to the validity of the regulations themselves, how would the Court likely rule? In Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), and subsequent cases, the Court held that when Congress has charged an agency with enforcing a statute, the Court should defer to the agency’s interpretation so long as it is reasonable. See also United States v. Mead Corp., 533 U.S. 218, 226–227 (2001) (qualifying but reaffirming Chevron). This deference may be particularly warranted in regard to statutory prohibitions on race and, by extension, gender discrimination. Neither Title VI nor Title IX provides any explanation of or context for what is entailed by the guarantee that “[n]o person in the United States shall, on the ground of race [or sex] be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Per congressional intent, regulatory agencies fill in this need for context and explanation. The legislative history shows that Congress refrained from defining discrimination, in part, because Congress itself was uncertain as to what “discrimination” meant. Charles F. Abernathy, Title VI and the Constitution: A Regulatory Model for Defining “Discrimination,” 70 Geo. L.J. 1, 20–32 (revealing Congress’s awareness of the ambiguity, uncertainty as to how to define it, and its ultimate “compromise” of delegating the issue to agencies).

4. Because Title IV is a generally applicable statute for any program receiving federal funds, the immediate effects of the Court’s holding in Sandoval spanned well beyond education. Prior litigants had used Title VI disparate impact regulations to challenge racial disparities in health care, transportation, the environment, and various other state and local services. In education, those racial disparities included special education, discipline, ability grouping and tracking, access to quality teachers, and funding, just to name a few. Many courts and scholars initially viewed Sandoval as a death knell to disparate impact litigation and racial inequity in education. The Court’s decision in Sandoval, however, cannot be viewed in isolation. Other significant theories or avenues for advocacy remain available.

First, the question of exactly what qualifies as intentional discrimination remains open and subject to evolution. In a series of Title IX cases, which prohibit discrimination in education based on sex, the Court has flexibly interpreted the phrase “intentional discrimination.” Those cases are explored in detail in Chapter 5. For now it suffices to say that in Title IX cases, the Court has held that deliberate indifference to discrimination is equivalent to intentional discrimination, as is retaliation against individuals who complain about discrimination.139 Those Title IX holdings should apply to Title VI race discrimination too, as Congress modeled Title IX on Title VI and the Court treats its holding in either Title VI or Title IX as applying to both statutes. As one scholar, further expanding on those cases, writes:

Sandoval must be understood as but one among a series of cases where the Court has recently explored liability under Title VI and Title IX. These cases demonstrate that intentional discrimination is not a narrow concept restricted solely to instances where race or gender played a role in a funding recipient’s decision. The Gebser [v. Lago Vista Independent School District, 524 U.S. 274 (1989)] line of cases demonstrates that a defendant also violates Title VI and Title IX when it takes intentional action/inaction that causes, contributes to, or perpetuates the discrimination or disadvantages that occur within its programs. Such a violation occurs, even when the defendant did not initially desire or act to create discrimination or disadvantage, if the discrimination and disadvantage continue to occur because the defendant knowingly refuses or fails to intervene.

Derek W. Black, The Mysteriously Reappearing Cause of Action: The Court’s Expanded Concept of Intentional Gender and Race Discrimination in Federally Funded Programs, 67 Md. L. Rev. 358, 371 (2008). Even if valid, however, there are limits to the use of the concept of “deliberate indifference” or other legal theories to challenge racial disparities and those limits can be hard to overcome. See, e.g., Pryor v. NCAA, 288 F.3d 548, 568 (3d Cir. 2002) (rejecting plaintiffs claim that defendant was deliberately indifferent to racially disparate impact and writing that to recognize such a claim would “turn Alexander [v. Sandoval] on its head, along with its prohibition against imposing liability for anything short of purposeful discrimination”); but see Maislin v. Tennessee State University, 665 F. Supp. 2d 922, 930 (M.D. Tenn. 2009) (refusing to dismiss deliberate indifference claim); Bryant v. Ind. Sch. Dist., 334 F.3d 928, 933 (10th Cir. 2003) (holding that defendants who “make the intentional choice to sit by and do nothing” can be held liable). Second, in addition to deliberate indifference claims, plaintiffs might focus on Title VI language that prohibits students from being “excluded from participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination.” 42 U.S.C. §2000d (2006). Are those three prohibitions redundant or distinct? Does the language “on the ground of race” mean something different in regard to each of the three prohibitions?

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Court addressed this issue in the context of Title IX. In Davis, the Court wrote:

The statute’s other prohibitions, moreover, help give content to the term “discrimination” in this context. Students are not only protected from discrimination, but also specifically shielded from being “excluded from participation in” or “denied the benefits of” any “education program or activity receiving Federal financial assistance.” 20 U.S.C. §1681(a). The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender. We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

526 U.S. at 650.

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5. The Court’s use of the language “denied access to educational benefits” in Davis sounds potentially broader than discrimination based on race or gender. Suppose a school district maintained a special program at a school that was predominantly white, and that the other school in the district is predominantly minority. If the district maintained a policy prohibiting students from participating in programs that are not offered at their own school, would this amount to a denial of access or exclusion from a program, or would there need to be evidence that the district’s intent was racially discriminatory? In Neal v. Board of Trustees of the California State University, 198 F.3d 763, 772 n.8 (9th Cir. 1999), the Ninth Circuit wrote: “[A]thletic teams are gender segregated, and universities must decide beforehand how many athletic opportunities they will allocate to each sex. As a result, determining whether discrimination exists in athletic programs requires gender-conscious, group-wide comparisons. Because men are not ‘qualified’ for women’s teams (and vice versa), athletics require a gender conscious allocation of opportunities in the first instance.” Relying on this rationale, some courts have found that it is enough that the school acted with intent, even if that intent was not to discriminate based on gender, because the result of its action was sufficiently obvious. Pederson v. La. State Univ., 213 F.3d 858, 880-881 (5th Cir. 2000); Barrett v. W. Chester Univ. of Pa. of State Sys. of Higher Educ., 636 F. Supp. 2d 439 (E.D. Pa. 2003). Is gender different from race, or might the same rationale extend?

D. ADMINISTRATIVE REMEDIES FOR RACIAL DISPARITIES

With the private legal theories described in the prior section still relatively underdeveloped, the clearest avenue for relief is before the U.S. Department of Education. As the Court emphasized in Sandoval, the only issue before it was the availability of a private cause of action to enforce disparate impact regulations in court. The Court assumed the validity of the regulation themselves and, by implication, agencies’ ability to enforce those regulations administratively. The Department of Education initially appeared reluctant to enforce those regulations, possibly for fear of inviting a legal challenge to the regulations themselves. But over time, the Department has increasingly clarified its stance on disparate impact, expanding its interpretation of disparate impact and demonstrating a willingness to enforce it. The following excerpt from the U.S. Department of Education describes how the agency will evaluate racial inequity in access to educational resources, which includes money, teachers, advanced courses, and other curricular opportunities.

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U.S. Department of Education, Dear Colleague Letter on Resource Comparability

October 1, 2014

Research confirms what we know intuitively—high-quality schools can make a dramatic difference in children’s lives, closing achievement gaps and providing students with the opportunity to succeed in college and their chosen careers. Many school districts offer academic and co-curricular programs that are differentiated based on academic rigor (e.g., gifted and talented or college preparatory programs) or content (e.g., business, health care, music, art, or career and technical education programs). These programs can improve student achievement and build specialized skills that help students move along a variety of pathways toward college- and career-readiness. Additionally, extracurricular opportunities such as academic clubs, athletics, and other organizations continue to build students’ academic and social skills outside of class. And researchers have found that participation in organized, school-based, extracurricular activities is strongly related to improved student achievement.

But schools serving more students of color are less likely to offer advanced courses and gifted and talented programs than schools serving mostly white populations, and students of color are less likely than their white peers to be enrolled in those courses and programs within schools that have those offerings. For example, almost one in five black high school students attend a high school that does not offer Advanced Placement (AP) courses, a higher proportion than any other racial group. [In 2011-2012], English language learners represented five percent of high school students, but only two percent of the students enrolled in an AP course. Similarly, of the high schools serving the most black and Latino students in the 2011-12 school year, only 74 percent offered Algebra II and only 66 percent offered chemistry. Comparable high-level opportunities were provided much more often in schools serving the fewest black and Latino students, where 83 percent offered Algebra II courses and 78 percent offered chemistry.

Black and Latino students were also underrepresented in gifted and talented programs during the 2011-12 school year. In particular, schools offering such programs had an aggregate enrollment that was 15 percent black and 25 percent Latino, but their gifted and talented enrollment was only 9 percent black and 17 percent Latino.

The teachers, leaders, and support staff in a school are foundational to student learning and development. But [s]chools serving the most black and Latino students are 1.5 times more likely to employ teachers who are newest to the profession (who are on average less effective than their more experienced colleagues) as compared to schools serving the fewest of those students. The unequal provision of strong teachers and stable teacher workforces too often disadvantages the schools with the most at-risk students as well as schools with the highest enrollments of students of color.

The physical spaces where our children are educated are also important resources that influence the learning and development of all students, yet many142 of our Nation’s schools have fallen into disrepair. Too often, school districts with higher enrollments of students of color invest thousands of dollars less per student in their facilities than those districts with predominantly white enrollments. [The result is] older buildings with inadequate or poorly maintained heating, ventilation, and air conditioning (HVAC) systems; [more frequent use of] temporary, portable buildings[; and less access to] essential educational facilities, such as science laboratories, auditoriums, athletic fields, and educational technologies.

Adequate funding is necessary to provide the programmatic, human, and physical resources described above. Allocation of funding should be designed to ensure the availability of equal educational opportunities for students, which may require more or less funding depending upon the needs at a particular school. Intradistrict and interdistrict funding disparities often mirror differences in the racial and socioeconomic demographics of schools, particularly when adjusted to take into consideration regional wage variations and extra costs often associated with educating low-income children, English language learners, and students with disabilities. These disparities are often a result of funding systems that allocate less State and local funds to high-poverty schools that frequently have more students of color, which can often be traced to a reliance on property tax revenue for school funding. Federal funds provided through Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA), are designed to provide additional resources on top of state and local funds. As a result, OCR typically will not consider Title I funds in a resource equity analysis. OCR also notes that even counting Title I funds, many districts still allocate resources among schools inequitably.

Such disparities may be indicative of broader discriminatory policies or practices that, even if facially neutral, disadvantage students of color. For example, teachers in high schools serving the highest percentage of black and Latino students during the 2011-12 school year were paid on average $1,913 less per year than their colleagues in other schools within the same district that serve the lowest percentage of black and Latino students.

Legal Framework for Office for Civil Rights Enforcement Efforts

The Department’s Office for Civil Rights (OCR) enforces Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin, in programs and activities receiving Federal financial assistance. School districts that receive Federal funds must not intentionally discriminate on the basis of race, color, or national origin, and must not implement facially neutral policies that have the unjustified effect of discriminating against students on the basis of race, color, or national origin.

Disparate Impact

[After describing Title VI prohibitions on intentional discrimination, the policy guidance indicates that school] districts also violate Title VI if they adopt facially neutral policies that are not intended to discriminate based on143 race, color, or national origin, but do have an unjustified, adverse disparate impact on students based on race, color, or national origin. In determining whether a facially neutral policy or practice has an unjustified, adverse disparate impact in allocating educational resources that violates Title VI, OCR applies the following analysis:

1) Does the school district have a facially neutral policy or practice that produces an adverse impact on students of a particular race, color, or national origin when compared to other students?

2) Can the school district demonstrate that the policy or practice is necessary to meet an important educational goal? In conducting the second step of this inquiry OCR will consider both the importance of the educational goal and the tightness of the fit between the goal and the policy or practice employed to achieve it. If the policy or practice is not necessary to serve an important educational goal, OCR would find that the school district has engaged in discrimination. If the policy or practice is necessary to serve an important educational goal, then OCR would ask

3) Are there comparably effective alternative policies or practices that would meet the school district’s stated educational goal with less of a discriminatory effect on the disproportionately affected racial group; or, is the identified justification a pretext for discrimination? If the answer to either question is yes, then OCR would find that the school district had engaged in discrimination. If no, then OCR would likely not find sufficient evidence to determine that the school district had engaged in discrimination.

Applying this disparate impact framework, OCR would not find unlawful discrimination based solely upon the existence of a quantitative or qualitative racial disparity resulting from a facially neutral policy. Nevertheless, OCR will investigate and ascertain whether such disparities are the result of unlawful discrimination under Title VI.

The first prong of this analysis requires OCR to identify a policy or practice that creates racial disparities in access to educational resources that are important to the quality of education a student receives, such that the disparity has an adverse impact on a racially defined group of students. Relying in part on research, OCR generally considers each of the educational resources discussed in this letter to provide a benefit and that its inequitable allocation tends to be adverse to students who are under-resourced. Additionally, OCR would also consider the school district’s decision to provide a particular resource to students, such as technology or a gifted and talented program, as evidence that the district believes the resource is important. OCR would expect these resources to be equitably provided without regard to students’ race, color, or national origin. Furthermore, OCR may consider indicia of the quality of education when determining adverse impact including, but not limited to, student achievement outcomes, graduation and retention-in-grade rates, and student and parent surveys. Finally, OCR would consider evidence offered by the school district that, in the specific factual context of its schools, a difference in certain resources does not adversely impact the quality of education.

If OCR identifies a policy or practice that creates adverse racial disparities, OCR looks to the school district for a substantial, legitimate, educational144 justification for the policy or practice. A district may offer a justification such as a policy of offering a diverse range of educational programs, of targeting resources to underperforming schools, or of piloting programs in one school before expanding them to more schools. As another example, school-based budgeting may allow for different choices at the school level regarding budgeting for resources such as instructional materials and staff positions, so that different combinations of resources at different schools would not necessarily represent resource inequity among those schools; in such a situation, OCR would investigate, among other things, whether the district’s overall system for allocating funds to schools was equitable. OCR will assess the explanation identified, giving some deference to the expertise of the educators making those decisions. If OCR accepts the justification, OCR will work with the school district to identify whether the district could implement a workable alternative with a less racially disparate impact.

Office for Civil Rights Investigations

In its investigations, OCR focuses on the scope and severity of resource disparities, and on a district’s processes for allocating resources to determine the extent to which the district is exacerbating or eliminating such disparities. OCR may compare a school’s resources against district averages and against district schools serving the most and the fewest students of a particular race or national origin to assess whether alleged resource disparities are, in fact, correlated with the race, color, or national origin of students. OCR also recognizes that resources may appropriately be allocated differently to meet schools’ differing needs. For example, an engineering-themed magnet school may invest more in computers than an arts-themed magnet school that invests more in musical instruments. Accordingly, OCR investigations are more likely to find school districts in violation of Title VI when it uncovers significant racial disparities in access to a particular education resource or patterns of racial inequality across a range of different types of resources.

Although comparative funding levels are pertinent to the issue of educational resource comparability, they may not be conclusive evidence of compliance or non-compliance. The comparison of resources, including funds, allocated among schools is ultimately designed to measure the relative allocation of equal educational opportunities for students. The provision of equal opportunities may require more or less funding depending on the location of the school, the condition of existing facilities, and the particular needs of students such as English language learners and students with disabilities. For example, older facilities generally require more money for annual maintenance than do newer facilities. Similarly, greater annual per-pupil library expenditures for one school may reflect an effort to correct years of underfunding of a library collection. Funding disparities that benefit students of a particular race, color, or national origin may also permissibly occur when districts are attempting to remedy past discrimination.

Much of the Federal funding provided to districts and schools comes from sources specified for a particular use such as special education, alternative145 language, or gifted programs. OCR may exclude these categorical resources from data used to determine comparability of regular education programs if those resources distort the comparisons for such programs.

Lack of funds does not preclude the duty to act under Title VI. OCR may consider how States, districts, and schools distribute whatever funds and resources are available, as well as how they act to provide additional or sufficient funds, to ensure equal educational opportunities.

OCR generally focuses on funding via its impact on [courses, academic programs, extracurricular activities, teaching effectiveness, student support, facilities, and technology]. Simplistic comparisons of per-pupil expenditure levels are often a poor measure of resource comparability, and there are many factual circumstances that can create varying funding needs that justify differential spending patterns among schools. The ultimate issue is whether funding is provided to each school in the district so as to provide equal educational opportunities for all students.

NOTES AND QUESTIONS

1. Are the standards and inquiries articulated in this document sufficient to ensure racially equitable opportunities? Are the standards a valid interpretation of Title VI? In what ways might they be too demanding or too lenient?

2. What specifically must a complainant establish to demonstrate a disparate impact violation in regard to educational resources? How might a district refute a disparate impact complaint?

3. What problems might arise from enforcing these standards through an agency rather than a court order? Does the Department of Education have more or less power than a court to secure compliance with its interpretations of the law? What advice would you offer a school district that is reluctant to voluntarily bring its own practices into compliance with the Department’s stance on racial disparities? Conversely, if clients came to you seeking assistance addressing racial disparities in educational resources in their community, what advice would you give them?

4. Title VI outlines a specific process through which the Department can secure compliance:

Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to146 this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.

42 U.S.C.A. §2000d-1 (West).

5. The Department has also issued guidance regarding racial disparities in school discipline and recently proposed new regulations regarding disparities in special education. Civil Rights Division, United States Department of Justice & Office for Civil Rights, United States Department of Education, Dear Colleague Letter: Nondiscriminatory Administration of School Discipline (2014); 81 Fed. Reg. 10967 (Mar. 2, 2016). It is worth noting that racial disparities in discipline, special education, and funding have been of significant concern for decades, but the Department had never before taken a firm, clear stance on them. Thus, these new policy guidance documents and proposed regulations are important not simply because they express support for disparate impact as a general principle, but because they apply it to specific and controversial contexts. What might explain these new aggressive stances? Are subsequent administrations likely to maintain them?

6. Are there aspects of educational inequity other than resources, special education, and discipline where the Department might validly proscribe or focus on racial disparities? If so, what defenses might a district offer to those disparities?

7. Starting around 2013, the Office for Civil Rights at the Department of Education began aggressively enforcing prohibitions on disparate impact. The result was a number of consent agreements in which districts acknowledged their racial disparities and committed to taking specific remedial steps. A typical agreement regarding discipline, for instance, indicated that the district would: (a) ensure to the maximum extent possible that misbehavior is addressed in a manner that does not require removal from school; (b) develop strategies to prevent discrimination in discipline; (c) review and revise its disciplinary policies; (d) better train staff; and (e) provide positive behavior supports before referring a student for discipline. Office for Civil Rights, Department of Education, Voluntary Resolution Agreement, Tupelo Public School District, OCR Case No. 06-11-5002 (Sept. 15, 2014).

PROBLEM

Stewart Public School District assigns students to classrooms based on “ability,” a system otherwise referred to as ability grouping or tracking. The district indicates that it assesses ability based on teachers’ perceptions of students’ ability, standardized test scores, and grades, although there is no indication of how much weight is given to each. Regardless, as a result of this process, more than 75 percent of the district’s classrooms are racially identifiable. In fact, while the district is roughly 50 percent white and 50 percent minority (African American and Latino combined), some of its higher-ability classrooms are147 almost entirely white and its lower-ability classes entirely minority. The district contends that these disparities are a result of poverty, citing that its minority students are disproportionately poor and less prepared when they first arrive at school.

Further investigation reveals several additional facts. First, students in lower-ability groups receive a less rigorous and lower quality of education than other students. Second, ability grouping starts as early as kindergarten. By the time students reach sixth grade, students in the lower-ability groups are approximately two years behind students in the higher-ability groups in terms of learning. Third, once the district assigns a student to an ability group, it rarely revaluates the student or moves him or her into a different ability group. Fourth, teachers in lower-ability classrooms have low expectations for their students. Fifth, many students with similar standardized test scores are not assigned to similar ability groups. Rather, among students with similar test scores, white students are more likely to be placed in higher-ability groups and minorities are more likely to be placed in lower levels. Finally, while relevant, socioeconomic status does not explain the full extent of these disparities.

The school district is not under a desegregation order. A group of minority parents wants to challenge the ability-grouping system. Would you file a private lawsuit? Would you pursue an administrative claim? Is there any additional information that would be helpful? What is the likelihood of success in pursuing your strategy?

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1 The doctrine apparently originated in Roberts v. City of Boston, 59 Mass. (1 Cush.) 198, 206 (1849), upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass. Acts 1855, c. 256. But elsewhere in the North segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern.

2 K.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer & Kotinsky, Personality in the Making ch. VI (1952); Deutscher & Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psychol. 259 (1948); Chein, What Are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int’l J. Opinion & Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare 44-48 (MacIver ed., 1949); Frazier, The Negro in the United States 674-81 (1949). See generally Myrdal, An American Dilemma (1944).

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Public schools rely heavily on local property taxes to fund education. As a result, the resources available in schools vary significantly across school districts and states. In the past, it was not uncommon for some school districts to spend more than double that of other districts in the same state. For instance, in San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 16 (1973), the Supreme Court revealed that the wealthiest districts in Texas spent $815 per pupil whereas the poorest spent $305 per pupil.

For a variety of political reasons, most states have done little to seriously address this problem. Yet, it is inaccurate to say states have done nothing or that all have piles of money that they refuse to allocate to needy districts. Some states have willingly allocated additional resources to poorer districts, but those funds have often been insufficient to remedy otherwise extreme inequality. Some states simply lack the capacity to properly fund education. As Goodwin Liu points out, the greatest funding inequalities exist between states, not within them. Goodwin Liu, Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. Rev. 2044 (2006). For instance, Mississippi’s per-pupil expenditures are the lowest in the nation, even though the state exerts significant effort to raise educational funds. Id. In poor states, huge efforts still net relatively small financial resources. In some wealthier states, per-pupil expenditures are low or unequal because the state makes so little effort to address the problem.

Regardless of the cause, funding inequality and inadequacy disadvantages numerous communities across the country. In states like Nebraska, West Virginia, and Wyoming, rural white communities tend to suffer the most inequality. In states like California, New Jersey, and New York, urban minority communities tend to suffer the most. In other states, inequality defies easy categorization, affecting rural and urban, minority and nonminority students. In short, finance systems operate to disadvantage some group in nearly every state. In response, advocates have filed litigation in 44 of 50 states. Michael A. Rebell, Education Adequacy, Democracy, and the Courts, in Achieving High Educational Standards for All: Conference Summary 218, 227 (Timothy Ready et al., eds., 2002).

Many term this litigation “school finance litigation.” This chapter often uses that term as well, but frames the issue differently. The focus of this chapter is the affirmative right to education and the state’s duty to assist poor150 and other disadvantaged students in overcoming challenges they may face in fully benefiting from that education. While the remedies in most litigation have been additional funding and reforms in school finance formulas, the justification for that remedy is the existence of an affirmative or equal right to education and the state’s failure to provide poor and disadvantaged students with appropriate educational opportunities. To be clear, however, poverty operates at both the individual and community level. At the individual level, student poverty creates educational challenges that require supplemental resources beyond the norm if most poor students are going to have a reasonable chance at educational success. Of course, these barriers entail any number of complex issues, but the example of nutrition makes the point simply. Were it not for free school breakfasts and lunches, many poor students would not receive a full meal at any point during the day, which has obvious consequences on learning. Realities of this sort make delivering quality educational opportunities to poor students more expensive.

At the community level, the effects of poverty are more complex. Putting individual student need aside, schools need a baseline of resources to pay teachers and build and maintain schools. Yet, not all communities have ready access to the resources necessary to achieve these ends. Some districts lack a significant commercial sector and are entirely dependent on residential property taxes to fund schools. In suburban neighborhoods with high home values and higher-earning families, raising funds this way is not a problem, but in communities where homes are not nearly as highly valued, localities must tax property-poor communities at much higher rates to generate the same amount of funding as other jurisdictions. At some point, raising taxes produces diminishing gains and actually reduces the value of homes and tax receipts. Other localities may not be property poor, but still face challenges in raising sufficient revenues because their costs are so high. Large cities, in particular, deliver far more municipal services than other areas, and these services are also more expensive to deliver in cities than elsewhere. Unless the city has a high tax base—and some do not—it may experience “municipal overburden,” and lack the capacity to both fund schools at high levels and offer necessary community services.

Because the problems of financing schools are so diverse, the key to a sophisticated understanding of this litigation is to develop a robust framework for the cases. This chapter attempts this by separating federal litigation and policy from state litigation and, within state litigation, separating the legal theory of cases from the remedies they warrant. The chapter begins with federal litigation, which is premised on the notion that education is a fundamental right under the U.S. Constitution and poverty is a suspect class. The U.S. Supreme Court rejected those arguments in San Antonio Independent School District, although it left open the possibility for narrower future litigation. The second section of the chapter examines state litigation that relies on education clauses in state constitutions. The first cases in this section offer examples of the major constitutional theories that litigants pursued: education as a fundamental right, a right to equal educational opportunities, and a right to a quality education. The subsequent cases offer a detailed examination of how to demonstrate a constitutional violation under these theories and the different remedies a151 violation might support. Throughout these cases, the chapter also focuses on separation of powers concerns that constrain courts in adjudicating the issues.

After establishing this framework, the chapter explores global issues, including whether litigation has remedied inequality, whether money actually matters, whether race and school poverty are separate issues, what effect poor education has on society at large, to what extent federal policy can or should address resource inequality, and, finally, what the future of the school finance movement holds. While these questions come at the end of the chapter, each is worth considering throughout the chapter as you read each case.

A. LIMITS OF FEDERAL INTERVENTION

1. Fundamental Right and Suspect Class Analysis

San Antonio Independent School District v. Rodriguez

411 U.S. 1 (1973)

Justice Powell delivered the opinion of the Court.

This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base.

The first Texas State Constitution, promulgated upon Texas’ entry into the Union in 1845, provided for the establishment of a system of free schools. Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State.

Until recent times, Texas was a predominantly rural State and its population and property wealth were spread relatively evenly across the State. Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.

Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas’ changing educational requirements, the state legislature in 1947 [established] the Texas Minimum Foundation School152 Program. Today, this Program accounts for approximately half of the total educational expenditures in Texas.

The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible—as a unit—for providing the remaining 20%. The districts’ share, known as the Local Fund Assignment, is apportioned among the school districts under a formula designed to reflect each district’s relative taxpaying ability.

The school district in which appellees reside, the Edgewood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to indicate the extent to which substantial disparities exist. Edgewood is one of seven public school districts in the metropolitan area. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960—the lowest in the metropolitan area—and the median family income ($4,686) is also the lowest. At an equalized tax rate of $1.05 per $100 of assessed property—the highest in the metropolitan area—the district contributed $26 to the education of each child for the 1967-1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248. Federal funds added another $108 for a total of $356 per pupil.

Alamo Heights is the most affluent school district in San Antonio in a residential community quite unlike the Edgewood District. The school population is predominantly “Anglo,” having only 18% Mexican-Americans and less than 1% Negroes. The assessed property value per pupil exceeds $49,000, and the median family income is $8,001. In 1967-1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil.

Despite these recent increases [in state aid], substantial interdistrict disparities in school expenditures prevail in San Antonio and in varying degrees throughout the State still exist. And it was these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas’ dual system of public school financing violated the Equal Protection Clause.

We must decide, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution.

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The wealth discrimination discovered by the District Court in this case is quite unlike any of the forms of wealth discrimination heretofore reviewed by this Court. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. [For instance, the Court has struck down state laws that denied an indigent criminal defendant a trial transcript or an attorney on direct appeal, incarcerated indigents based on their inability to pay a fine, and barred candidates from running for office if they could not pay large filing fees. These cases involved absolute denials and none involved qualitative differences, for instance, in the counsel that the less wealthy might be able to secure.]

Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that “[i]t is clearly incorrect…to contend that the ‘poor’ live in ‘poor’ districts.…Defining ‘poor’ families as those below the Bureau of the Census ‘poverty level,’ ” the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas—those same areas that provide the most attractive sources of property tax income for school districts. Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people—defined by reference to any level of absolute impecunity—are concentrated in the poorest districts.

Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money expended for it, a sufficient answer to appellees’ argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. Nor indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program154 provides an “adequate” education for all children in the State. By providing 12 years of free public-school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to “guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by ‘A Minimum Foundation Program of Education.’ ” The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire and that it now assures “every child in every school district an adequate education.” No proof was offered at trial persuasively discrediting or refuting the State’s assertion.

For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms.

Appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family the lower the dollar amount of education received by the family’s children.

If, in fact, these correlations could be sustained, then it might be argued that expenditures on education—equated by appellees to the quality of education—are dependent on personal wealth. Appellees’ comparative-discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor, and whether a class of this size and diversity could ever claim the special protection accorded “suspect” classes. These questions need not be addressed in this case, however, since appellees’ proof fails to support their allegations or the District Court’s conclusions.

This brings us, then, to the third way in which the classification scheme might be defined—district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to bottom, the disadvantaged class might be viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education. Alternatively, the class might be defined more restrictively to include children in districts with assessable property which falls below the statewide average, or median, or below some other artificially defined level.

However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or155 subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. They also assert that the State’s system impermissibly interferes with the exercise of a “fundamental” right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. It is this question—whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years.

In Brown v. Board of Education, a unanimous Court recognized that “education is perhaps the most important function of state and local governments.” What was said there in the context of racial discrimination has lost none of its vitality with the passage of time:

Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice Harlan, dissenting from the Court’s application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that “[v]irtually every state statute affects important rights.” In his view, if the degree of judicial scrutiny of state legislation fluctuated, depending on a majority’s view of the importance of the interest affected, we would have gone “far toward making this Court a ‘super-legislature.’ ” We would, indeed, then be assuming a legislative role and one for which the Court lacks both authority and competence.

It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to156 discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.

Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation. It is appellees’ contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The “marketplace of ideas” is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge.

A similar line of reasoning is pursued with respect to the right to vote. Exercise of the franchise, it is contended, cannot be divorced from the educational foundation of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed.

We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial instruction into otherwise legitimate state activities.

Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures in Texas provide an education that falls short. Whatever merit appellees’ argument might have if a State’s financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where—as is true in the present case—no charge fairly could be made that the system fails to provide each child with an157 opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.

Furthermore, the logical limitations on appellees’ nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment.

We have carefully considered each of the arguments supportive of the District Court’s finding that education is a fundamental right or liberty and have found those arguments unpersuasive.

We need not rest our decision, however, solely on the inappropriateness of the strict-scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State’s system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State’s judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures. This Court has often admonished against such interferences with the State’s fiscal policies under the Equal Protection Clause[.]

Thus, we stand on familiar grounds when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet, we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause.

In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education presents a myriad of “intractable economic, social, and even philosophical problems.” The very complexity of the problems of financing and managing a statewide public school system suggests that “there will be more than one constitutionally permissible method of solving them,” and that, within158 the limits of rationality, “the legislature’s efforts to tackle the problems” should be entitled to respect. On even the most basic questions in this area, the scholars and educational experts are divided. Indeed, one of the major sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education—an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case. Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education. And the question regarding the most effective relationship between state boards of education and local school boards, in terms of their respective responsibilities and degrees of control, is now undergoing searching re-examination. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.

It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State’s laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While “[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action,” it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State.

The foregoing considerations buttress our conclusion that Texas’ system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention.

III

Because of differences in expenditure levels occasioned by disparities in property tax income, appellees claim that children in less affluent districts have been made the subject of invidious discrimination. The District Court found that the State had failed even “to establish a reasonable basis” for a system that results in different levels of per-pupil expenditure. We disagree.

In its reliance on state as well as local resources, the Texas system is comparable to the systems employed in virtually every other State. The power to tax159 local property for educational purposes has been recognized in Texas at least since 1883. When the growth of commercial and industrial centers and accompanying shifts in population began to create disparities in local resources, Texas undertook a program calling for a considerable investment of state funds.

Appellees do not question the propriety of Texas’ dedication to local control of education. To the contrary, they attack the school-financing system precisely because, in their view, it does not provide the same level of local control and fiscal flexibility in all districts. Appellees suggest that local control could be preserved and promoted under other financing systems that resulted in more equality in education expenditures. While it is no doubt true that reliance on local property taxation for school revenues provides less freedom of choice with respect to expenditures for some districts than for others, the existence of “some inequality” in the manner in which the State’s rationale is achieved is not alone a sufficient basis for striking down the entire system. It may not be condemned simply because it imperfectly effectuates the State’s goals. Nor must the financing system fail because, as appellees suggest, other methods of satisfying the State’s interest, which occasion “less drastic” disparities in expenditures, might be conceived. Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative. It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain under the present system a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools. The people of Texas may be justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe that along with increased control of the purse strings at the state level will go increased control over local policies.

Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on “happenstance.” They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of local taxation—indeed the very existence of identifiable local governmental units—requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others. Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions—public and private.

Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education then it might be an equally impermissible means of providing other necessary services customarily financed largely from160 local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees’ contentions. It has simply never been within the constitutional prerogative of this Court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live.

In sum, to the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. Texas has acknowledged its shortcomings and has persistently endeavored—not without some success—to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. We hold that the Texas plan abundantly satisfies this standard.

Mr. Justice Marshall, with whom Mr. Justice Douglas concurs, dissenting.

The Court acknowledges that “substantial interdistrict disparities in school expenditures” exist in Texas, and that these disparities are “largely attributable to differences in the amounts of money collected through local property taxation.” But instead of closely examining the seriousness of these disparities and the invidiousness of the Texas financing scheme, the Court undertakes an elaborate exploration of the efforts Texas has purportedly made to close the gaps between its districts in terms of levels of district wealth and resulting educational funding. Yet, however praiseworthy Texas’ equalizing efforts, the issue in this case is not whether Texas is doing its best to ameliorate the worst features of a discriminatory scheme but, rather, whether the scheme itself is in fact unconstitutionally discriminatory in the face of the Fourteenth Amendment’s guarantee of equal protection of the laws. When the Texas financing scheme is taken as a whole, I do not think it can be doubted that it produces a discriminatory impact on substantial numbers of the school age children of the State of Texas.

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The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review—strict scrutiny or mere rationality. But this Court’s decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find in fact that many of the Court’s recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued—that is, an approach in which “concentration [is] placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification.”

I therefore cannot accept the majority’s labored efforts to demonstrate that fundamental interests, which call for strict scrutiny of the challenged classification, encompass only established rights which we are somehow bound to recognize from the text of the Constitution itself. To be sure, some interests which the Court has deemed to be fundamental for purposes of equal protection analysis are themselves constitutionally protected rights. Thus, discrimination against the guaranteed right of freedom of speech has called for strict judicial scrutiny. Further, every citizen’s right to travel interstate, although nowhere expressly mentioned in the Constitution, has long been recognized as implicit in the premises underlying that document: the right “was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.” But it will not do to suggest that the “answer” to whether an interest is fundamental for purposes of equal protection analysis is always determined by whether that interest “is a right…explicitly or implicitly guaranteed by the Constitution.”

I would like to know where the Constitution guarantees the right to procreate, or the right to vote in state elections, or the right to an appeal from a criminal conviction. These are instances in which, due to the importance of the interests at stake, the Court has displayed a strong concern with the existence of discriminatory state treatment. But the Court has never said or indicated that these are interests which independently enjoy fullblown constitutional protection.

The majority is, of course, correct when it suggests that the process of determining which interests are fundamental is a difficult one. But I do not think the problem is insurmountable. And I certainly do not accept the view that the process need necessarily degenerate into an unprincipled, subjective “picking-and-choosing” between various interests or that it must involve this Court in creating “substantive constitutional rights in the name of guaranteeing162 equal protection of the laws.” Although not all fundamental interests are constitutionally guaranteed, the determination of which interests are fundamental should be firmly rooted in the text of the Constitution. The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly. Thus, it cannot be denied that interests such as procreation, the exercise of the state franchise, and access to criminal appellate processes are not fully guaranteed to the citizen by our Constitution. But these interests have nonetheless been afforded special judicial consideration in the face of discrimination because they are, to some extent, interrelated with constitutional guarantees. Procreation is now understood to be important because of its interaction with the established constitutional right of privacy. The exercise of the state franchise is closely tied to basic civil and political rights inherent in the First Amendment. And access to criminal appellate processes enhances the integrity of the range of rights implicit in the Fourteenth Amendment guarantee of due process of law. Only if we closely protect the related interests from state discrimination do we ultimately ensure the integrity of the constitutional guarantee itself. This is the real lesson that must be taken from our previous decisions involving interests deemed to be fundamental.

Since the Court now suggests that only interests guaranteed by the Constitution are fundamental for purposes of equal protection analysis, and since it rejects the contention that public education is fundamental, it follows that the Court concludes that public education is not constitutionally guaranteed. It is true that this Court has never deemed the provision of free public education to be required by the Constitution. Indeed, it has on occasion suggested that state-supported education is a privilege bestowed by a State on its citizens. Nevertheless, the fundamental importance of education is amply indicated by the prior decisions of this Court, by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values.

The special concern of this Court with the educational process of our country is a matter of common knowledge. Only last Term, the Court recognized that “[p]roviding public schools ranks at the very apex of the function of a State.” Wisconsin v. Yoder, 406 U.S. 205, 213 (1972). This is clearly borne out by the fact that in 48 of our 50 States the provision of public education is mandated by the state constitution. No other state function is so uniformly recognized as an essential element of our society’s well-being. In large measure, the explanation for the special importance attached to education must rest, as the Court recognized in Yoder, on the facts that “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system…,” and that “education prepares individuals to be self-reliant163 and self-sufficient participants in society.” Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.

Education directly affects the ability of a child to exercise his First Amendment rights, both as a source and as a receiver of information and ideas, whatever interests he may pursue in life. The opportunity for formal education may not necessarily be the essential determinant of an individual’s ability to enjoy throughout his life the rights of free speech and association guaranteed to him by the First Amendment. But such an opportunity may enhance the individual’s enjoyment of those rights, not only during but also following school attendance. Thus, in the final analysis, “the pivotal position of education to success in American society and its essential role in opening up to the individual the central experiences of our culture lend it an importance that is undeniable.”

Of particular importance is the relationship between education and the political process. “Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government.” Education serves the essential function of instilling in our young an understanding of and appreciation for the principles and operation of our governmental processes. Education may instill the interest and provide the tools necessary for political discourse and debate. Indeed, it has frequently been suggested that education is the dominant factor affecting political consciousness and participation. But of most immediate and direct concern must be the demonstrated effect of education on the exercise of the franchise by the electorate. The right to vote in federal elections is conferred by Art. 1, §2, and the Seventeenth Amendment of the Constitution, and access to the state franchise has been afforded special protection because it is “preservative of other basic civil and political rights.” Data from the Presidential Election of 1968 clearly demonstrate a direct relationship between participation in the electoral process and level of educational attainment. It is this very sort of intimate relationship between a particular personal interest and specific constitutional guarantees that has heretofore caused the Court to attach special significance, for purposes of equal protection analysis, to individual interests such as procreation and the exercise of the state franchise.

NOTES AND QUESTIONS

1. Plaintiffs assert two different theories of why the funding system in Texas violates their constitutional rights. What are they?

2. The Court distinguishes the deprivation in this case from the deprivations in cases where the Court has previously recognized a constitutional violation regarding access to an attorney, transcripts for criminal appeals, and the ability to run for public office. In what way does the Court indicate the deprivation of education is distinct from these other rights? Is the Court persuasive?

3. The Court refuses to recognize education as a fundamental right. Why? What counterarguments do the dissenters offer? If education were a fundamental right, is there any basis to distinguish it from other important rights164 that the state extends to citizens? Does the majority leave open the possibility that some other right to education exists?

4. Why does the Court reject the idea that the poor constitute a suspect class? Does Texas’s finance scheme discriminate against the poor?

5. The Court has held that voting is a fundamental right under equal protection, but not substantive due process. See, e.g., Harper v. Virginia, 383 U.S. 663, 670 (1966). In effect, this means that the Constitution does not per se guarantee the right to vote, but once the state extends the right to vote, any inequities are subject to strict scrutiny. Is there any reason to permit the state to treat citizens differently in regard to education, but not voting?

Distinguishing between fundamental rights under substantive due process and fundamental rights under equal protection can be difficult. The simplest explanation is that due process fundamental rights refer to those rights we possess without government granting them to us. One might think of them as inalienable rights (although they are not limited to those rights) such as the freedom of speech, the right to privacy, and the right to life. The government does not give us these rights, and because they are fundamental, the government cannot take them away from anyone or infringe on them without being subject to strict scrutiny.

In contrast, fundamental rights under equal protection are not freestanding inalienable rights. The idea is that, although the government may not be obliged to extend citizens a particular benefit, some benefits are so important that the government should not be permitted to treat citizens unequally once it extends the benefit. For instance, federal law does not require state governments to afford their citizens the right to vote in various state and local elections. Thus, the state would presumably be free to withdraw the right to vote for local school board members and instead permit mayors to appoint them. But when the state affords the right to vote in local school board elections, it must treat everyone equal in the voting process. Kramer v. Union Free School Dist. No. 15, 395 U.S. 621 (1969). Inequalities and infringements are subject to strict scrutiny.

If a fundamental right exists under substantive due process, a violation occurs when any single person’s right is infringed, whereas if a right is only fundamental under equal protection, a violation typically occurs only if a group of individuals is treated differently.

6. Because education is not a fundamental right, the Court applies rational basis scrutiny to the educational inequalities. Was the Court’s application of rational basis review too deferential? Is there a plausible argument that Texas’s funding scheme does not even pass rational basis review? In a subsequent case, the Court applied a more rigorous version of rational basis to another form of discrimination in education. Plyler v. Doe, 457 U.S. 202 (1982) (striking down the denial of education to undocumented immigrants because the state’s objectives and means were irrational). Some state courts have held that their state finance systems do not pass rational basis. See, e.g., Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139 (Tenn. 1993); Bingham v. State, 692 A.2d 384 (Vt. 1997).

7. The Court in Rodriguez frames the case as a choice between strict scrutiny and rational basis. Justice Marshall advocates a different approach. Is his approach preferable? Does Marshall’s approach pose another set of problems?165 Under his approach, what level of scrutiny would have applied to these educational inequalities?

8. Are the Court’s federalism concerns valid? Were the concerns with local autonomy any less pressing in regard to desegregation?

9. To what extent, if any, should it matter whether differences in school funding can be demonstrated to have an impact on educational quality or student outcomes? Is it enough that money differentials will affect the resources available for school facilities, specialized educational programs, and teacher recruitment? The Court in Rodriguez indicated that “[o]n even the most basic questions in this area the scholars and educational experts are divided. Indeed, one of the major sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education.” 411 U.S. at 42-43. The Court further indicated that the lower court had incorrectly “assumed [a] correlation [in] virtually every legal conclusion” it drew regarding money. Id. at 43. As you will see, this question continually resurfaces in state courts, many of which disagree with the Court’s conclusion.

10. The Court’s opinion in Rodriguez did not end the litigation over Texas’s school finance system. Challenges to the state’s finance system had reached the Texas Supreme Court six times as of 2012. In 1989, the court held that inequities in the finance system violated the education clause of the state constitution. Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989). In 1991 and 1992, the court held the state’s revisions to its finance system were insufficient. Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex. 1991) (Edgewood II); Edgewood Indep. Sch. Dist. v. Kirby, 826 S.W.2d 489 (Tex. 1992) (Edgewood III). Finally, in 1995, the court upheld the state’s new finance scheme. Edgewood Indep. Sch. Dist. v. Kirby, 893 S.W.2d 450 (Tex. 1995) (Edgewood IV).

The state’s new finance scheme recaptured funds from wealthier school districts and redistributed them to property-poor districts. This led to a legal challenge by wealthy districts in 2001. The case made it to the Texas Supreme Court again in West Orange-Cove Consolidated ISD v. Nelson, 107 S.W.3d 558 (Tex. 2003). The court permitted the challenge to move forward and remanded the case for trial. Poor districts intervened in the case, and, at trial, the issues reverted back to those relating to inadequacy in poor districts. The trial court found that the finance system had again become inadequate and inefficient. On appeal, the supreme court rejected most of the trial court’s findings, but still declared the state’s tax scheme unconstitutional. West Orange-Cove Consol. ISD v. Neeley, 176 S.W.3d 746 (Tex. 2005).

The particular theories by which plaintiffs pursue claims under state law are further explored later in this chapter.

2. Rationality and Minimally Adequate Education

Rodriguez is generally understood in regard to what it appeared to rule out—education as a fundamental right under the U.S. Constitution. Rarely emphasized is the fact that Rodriguez left other questions open. First, the Court in Rodriguez suggested that the outcome may have been different had the state166 failed to deliver a minimally adequate education, 411 U.S. at 37, leaving open the question of whether there is a federal fundamental right to a minimally adequate education. Daniel S. Greenspahn, A Constitutional Right to Learn: The Uncertain Allure of Making a Federal Case out of Education, 59 S.C. L. Rev. 755, 768-770 (2008). The Court in Papasan v. Allain, 478 U.S. 265 (1986), later returned to this point and emphasized its importance. The Papasan Court explained that the Rodriguez Court had

declined to apply any heightened scrutiny based either on wealth as a suspect classification or on education as a fundamental right. As to the latter, the Court recognized the importance of public education but noted that education “is not among the rights afforded explicit protection under our Federal Constitution.” The Court did not, however, foreclose the possibility “that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either [the right to speak or the right to vote].” Given the absence of such radical denial of educational opportunity, it was concluded that the State’s school financing scheme would be constitutional if it bore “some rational relationship to a legitimate state purpose.”

Id. at 283-284.

The Court in Papasan then emphasized the relevance of this narrow holding to facts presented in other cases that followed Rodriguez, including the facts in Papasan. The Court wrote:

Almost 10 years [after Rodriguez], the Court again considered the equal protection status of the administration of the Texas public schools—this time in relation to the State’s decision not to expend any state funds on the education of children who were not “legally admitted” to the United States. Plyler v. Doe, 457 U.S. 202 (1982). The Court did not, however, measurably change the approach articulated in Rodriguez. It reiterated that education is not a fundamental right and concluded that undocumented aliens were not a suspect class. Nevertheless, it concluded that the justifications for the discrimination offered by the State were “wholly insubstantial in light of the costs involved to these children, the State, and the Nation.”

The complaint in this case asserted not simply that the petitioners had been denied their right to a minimally adequate education but also that such a right was fundamental and that because that right had been infringed the State’s action here should be reviewed under strict scrutiny. As Rodriguez and Plyler indicate, this Court has not yet definitively settled the questions whether a minimally adequate education is a fundamental right and whether a statute alleged to discriminatorily infringe that right should be accorded heightened equal protection review.

478 U.S. at 285. The Court in Papasan did not resolve these questions either. It found those questions unnecessary to decide the specific case before it.

The additional question left open by Rodriguez was whether some financing systems or educational policies might be so discriminatory or flawed that they would not pass rational basis review. The Court’s approach in Rodriguez was so deferential that it appeared to leave little room for subsequent courts to meaningfully scrutinize educational inequities. Thus, the Court’s more rigorous application of rational basis in Plyler v. Doe, 457 U.S. 202 (1982), came as somewhat of a surprise. Rather than a challenge to school finance, Plyler involved a challenge to a Texas statute that permitted public schools to deny undocumented immigrants education. Because immigrants are not a suspect class for purposes of167 equal protection and the Court in Rodriguez held that education is not a fundamental right, the Court in Plyler applied rational basis review to the denial of education. The Court recognized that “[i]n applying the Equal Protection Clause to most forms of state action, we…seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.” Id. at 216. But the Court added that “we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification.” Id.

The Court offered two reasons for a less deferential form of rational basis review in Plyler. First, “certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties.” Id. at 217. The Court found that even though undocumented immigrants are not a suspect class, the Texas statute would create a stigmatized underclass by excluding these children from school. Second, “[p]ublic education is not a ‘right’ granted to individuals by the Constitution. But neither is it merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.…[Education plays a] pivotal role…in sustaining our political and cultural heritage [and] denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit.” Id. at 221-222. Based on the intersection of class-based discrimination and the denial of a right as important as education, the Court indicated that “we may appropriately take into account [the statute’s] costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.” Id. at 223. The Court then went on to find that the state’s arguments that it was attempting to conserve education resources, to protect itself from an influx of immigrants, and to focus its resources on students who would remain in the state were all irrational, reasoning that the statute was an ineffective way to achieve the state’s objectives and its premises were flawed. The dissent argued that, regardless of whether this statute was the most effective or wise, it easily passes rational basis review, and no precedent exists for a more rigorous version of rational basis review. Regardless, the dissent’s critique tends to reinforce that the Court could and would apply a more rigorous review to some inequalities, and, thus, Rodriguez did not establish an absolute ceiling.

NOTES AND QUESTIONS

1. Does the Court’s holding in Plyler represent the vindication of Justice Marshall’s dissent in Rodriguez? Or is it an example of the Court stretching the law to reach a desired result?

2. A few years after Plyler, the Court again faced the constitutionality of educational inequity in Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988). The dispute in Kadrmas involved a state statute that permitted school districts to168 charge students a user fee for bus transportation. The plaintiff argued that heightened scrutiny should apply under equal protection because of the effects the statute would have on poor students. The Supreme Court rejected this argument and applied rational basis review. Consistent with Rodriguez, the Court held that socioeconomic status is not a suspect class nor is education a fundamental right. The Court did, however, recognize the need to distinguish the facts before it from those in Plyler, indicating the bus fee will not “promot[e] the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment welfare, and crime.” Id. at 459. The Court reasoned that the statute’s goal was to encourage districts to provide transportation that they otherwise had no obligation to provide. Allowing them to charge fees is a rational means to achieve that goal. Id. at 462. Given that Kadrmas involved ancillary education benefits, rather than education itself, what precedential value would it have in a case involving a denial of substantive educational benefits?

3. With the apparent legal blessing of Kadrmas, school districts have increasingly charged students fees for various aspects of school, including supplemental instructional materials, extracurricular fees, and science and art class supplies. Because there are so many aspects of school that entail fees now, some schools have instituted general registration fees that can amount to several hundred dollars. Sam Dillon, Public Schools Face Lawsuit over Fees, N.Y. Times, Sept. 10, 2010; Stephanie Simon, Public Schools Charge for Kids for Basics, Frills, Wall St. J., May 25, 2011.

PROBLEM

The structure and regulation of public schools have changed enormously since San Antonio v. Rodriguez. Assume you are in a state that now, rather than leave matters to local discretion, sets the standard course of study for its public schools, establishes the learning objectives and specific items of knowledge students should obtain, and assesses students annually through standardized exams, which students must pass for promotion to the next grade and graduation. The state similarly regulates teacher certification and quality standards. In addition, the funding of schools has changed. The state now provides around 75 percent of most districts’ budgets. Another 10 percent comes from the federal government in exchange for the state’s consent to extensive federal regulation of schools. Ten years ago, the state supreme court held that the state constitution guarantees students the right to a quality education and that all students must have equal access to it, but in subsequent years, the state courts have encountered problems enforcing this right and prompting effective action by the legislature.

You represent students from one of the lowest performing and poorest school districts in the state. They want to bring a claim in federal court, which might eventually reach the U.S. Supreme Court. What, if any arguments, would you make that Rodriguez should be reconsidered?

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B. STATE CONSTITUTIONAL RIGHTS

A number of scholars have divided school finance litigation into what they call “three waves of litigation,” and some have suggested that a fourth wave began a few years after the turn of the century. See, e.g., Michael Heise, The Political Economy of Education Federalism, 56 Emory L.J. 125, 132-133 (2006); William E. Thro, The Third Wave: The Impact of the Montana, Kentucky and Texas Decisions on the Future of Public School Finance Reform Litigation, 19 J.L. & Educ. 219, 239-242 (1990); Julie K. Underwood, School Finance Adequacy as Vertical Equity, 28 U. Mich. J.L. Reform 493, 498-502 (1995). This section of the chapter organizes itself around the categorical theories and remedies pursued in school finance rather than waves of litigation, but a basic explanation of the waves is helpful in understanding the history of school finance, regardless of their value in regard to any particular current claims.

The first wave of litigation involved a series of court challenges in state and federal courts, and included San Antonio v. Rodriguez. As demonstrated in Rodriguez, the legal theory in this first wave of litigation was that school district inequities that stem from relying on local property tax to fund education violate the Equal Protection Clause of the U.S. Constitution. The goal of this litigation was to produce “equity,” which meant an equal amount of funding for each student. Before the Court issued its opinion in Rodriguez, the California Supreme Court in Serrano v. Priest, 487 P.2d 1241, 1258 (Cal. 1971), found that education was a fundamental right, relying on both federal and state law. Thus, funding inequities in the state were unconstitutional. But the Court’s holding in Rodriguez undercut the California Supreme Court’s rationale and forestalled other similar federal theories that were part of this first wave.

By discouraging further school finance litigation in federal court, Rodriguez set off a second wave of litigation in state courts, some of which was already under way. When the Court issued its decision in Rodriguez, the New Jersey Supreme Court had written, but not issued, its opinion in Robinson v. Cahill, 303 A.2d 273 (N.J. 1973), on whether funding inequities violate its state constitution. The litigants in Serrano also returned to the California Supreme Court a second time to argue that, even if the funding inequities in the state did not violate the U.S. Constitution, they violated the state constitution. Both the New Jersey and California supreme courts held that their state constitutions provided greater protection for education than the U.S. Constitution and that education was a fundamental right under state law. Serrano v. Priest, 557 P.2d 929, 951 (Cal. 1976) (Serrano II); Robinson, 303 A.2d at 291-292, 295. Courts in Arkansas, Connecticut, Washington, and Wyoming shortly thereafter also found a fundamental right to education in their state constitutions, thereby furthering advocates’ ability to promote equitable financing of public schools. Dupree v. Alma Sch. Dist. No. 30, 651 S.W.2d 90, 93 (Ark. 1983); Horton v. Meskill, 376 A.2d 359 (Conn. 1977); Seattle Sch. Dist. No. 1 v. State, 585 P.2d 71 (Wash. 1978); Washakie Cnty. Sch. Dist. v. Herschler, 606 P.2d 310 (Wyo. 1980).

The obvious question is why funding inequities would violate a state constitution but not the U.S. Constitution. The answer is twofold. First, state170 constitutions have their own equal protection clauses, which were largely untested. Prior to school finance litigation, many states applied their equal protection clauses as no more than a font of federal equal protection, but others held that their respective equal protection clauses had independent meaning based on their unique history and intent. Second and most important, unlike the U.S. Constitution, all state constitutions guarantee a right to education in some way. All 50 state constitutions explicitly mention or guarantee education through an education clause. Many of these clauses date back to the Civil War and Reconstruction period when state constitutions were redrafted and education was one of the pressing public needs for a modernizing country. See generally John C. Eastman, When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education 1776-1900, 42 Am. J. Legal Hist. 1 (1998) (describing the various state constitutional developments and amendments relating to education during the period leading up to and following the Civil War). Until relatively recently, Mississippi was the only state without an education clause, but in the 1980s its state supreme court indicated that education was nonetheless a fundamental right under the due process clause of its constitution. Board of Trs. v. T.H., III, 681 So. 2d 110, 114 (Miss. 1996); Clinton v. Byrd, 277 So. 2d 237, 240 (Miss. 1985). Shortly thereafter, the state amended its constitution to include an explicit education obligation. Miss. Const. Art. VII, §201.

This second wave of litigation is distinguished from the first largely in terms of its success and reliance on state constitutions, but its underlying concept of equity was effectively the same as in the first wave. The notion that equal expenditures were insufficient to provide equal opportunity for all districts and students, however, began to develop during this period. A few plaintiffs successfully argued that state equal protection and education clauses also include a substantive component. See generally Underwood, supra, at 511-513. This concept of equity recognizes that some students, based on their place of residence, socioeconomic status, or disability, have greater learning needs than others and, therefore, may need greater educational resources than other students, depending on their unique circumstances or need.

Plaintiffs in the second wave of litigation achieved mixed success in the courts. As a practical matter, addressing the unique needs of individual students, while also attempting to equalize spending among districts, was challenging. First, even if equalized funding could be accomplished, this alone would not ensure equal educational opportunities, which was the real purpose of most litigation. Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 Vand. L. Rev. 101, 147 (1995); Liz Kramer, Achieving Equitable Education Through the Courts: A Comparative Analysis of Three States, 31 J.L. & Educ. 1, 3 (2001). Second, public opposition arose to the concept of strict equity because it required shifting funds away from some districts to others. Douglas S. Reed, Twenty-Five Years after Rodriguez: School Finance Litigation and the Impact of the New Judicial Federalism, 32 Law & Soc’y Rev. 175 (1998). Some have argued that the requirement of strict equity diminished the local incentive to support education that otherwise would have existed in wealthy districts, leading to an overall reduction rather than increase in school funding. Molly McUsic, The171 Law’s Role in Distribution of Education: The Promises and Pitfalls of School Finance Litigation, in Law and School Reform: Six Strategies for Promoting Educational Equity 88, 114 (Jay P. Heubert ed., 1999). Others dispute this point. Kramer, supra, at 7-8 (citing Sheila A. Murray et al., Education-Finance Reform and the Distribution of Education Resources, 88 Am. Econ. Rev. 791, 807 (1998)). Regardless, facing the practical difficulty of equalizing funding and realizing the possible limitations of traditional equity litigation in state courts, some plaintiffs shifted toward a third strategy premised on educational quality.

The third wave of finance litigation was intertwined with the national movement toward standards-based education. In 1983, the National Commission on Excellence in Education published a report titled A Nation at Risk. This and other subsequent reports warned of a “rising tide of mediocrity” in American education and fueled the notion that the country was suffering a national “crisis in education.” See generally Susan H. Bitensky, Theoretical Foundations for a Right to Education under the U.S. Constitution: A Beginning to the End of the National Education Crisis, 86 Nw. U. L. Rev. 550, 555-562 (1992). Central to this claim were statistics indicating that America’s children were falling behind their counterparts in other industrialized nations. In 1989, President Bush called a National Education Summit with the states’ governors to address the problems in America’s schools. Joetta L. Sack, The End of an Education Presidency, Educ. Wk., Jan. 17, 2001. The “standards-based reform” movement, which demanded that states set high academic standards in core subject areas, grew out of these events and concerns.

The national concern over educational quality and content presented an opening for school finance litigants to capitalize on those aspects of state educational clauses that reference some substantive concept of education. Prior litigation had used the fact that state constitutions explicitly guarantee education to argue that education was a fundamental right or required heightened equal protection scrutiny. The third wave of litigation, in contrast, focused not just on the fact that education was specifically protected, but that various state constitutions described education in a way that suggested a qualitative guarantee. For instance, various state constitutions indicate that the state must deliver “efficient,” “thorough,” or “sound basic” education.

Focusing squarely on these qualitative descriptions, litigants sought to establish state constitutional rights to what is commonly called an “adequate” education. Adequacy cases are premised on the theory that the state has a duty to supply students with an education that allows them to meet particular substantive standards, graduate, and pursue higher education or employment. Plaintiffs seek to establish that students are not obtaining an adequate education with evidence that students are failing to meet standards as measured by results on standardized tests and other indicators of educational success.

The earliest court opinions fleshed out an adequate education in the broadest terms, defining it as an education that equips students to be citizens or participants in the job market. Vague definitions of this sort proved largely unsuccessful in substantively improving educational systems because it was nearly impossible to measure whether the state was meeting the standard. But, in 1989, in Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989),172 the Kentucky Supreme Court took a different approach by delving deep into the meaning of an adequate education. The court held that a constitutionally adequate or “efficient” education included several specific competencies: “sufficient oral and written skills to enable students to function in…civilization; sufficient knowledge of economic, social and political systems to enable the student to make informed decisions; sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her…nation; self-knowledge of mental and physical wellness; art and culture appreciation; and preparation for higher learning in either academics or a vocation.” Id. at 212.

Several states followed Kentucky’s lead and prescriptively established what is meant by analogous language in their own constitutions. See, e.g., Alabama Opinion of the Justice, 624 So. 2d 107, 165-166 (Ala. 1993); Idaho Schs. for Equal Educ. Opportunity v. Evans, 850 P.2d 724, 734 (Idaho 1993); McDuffy v. Secretary, 615 N.E.2d 516, 554 (Mass. 1993); Claremont Sch. Dist. v. Governor, 703 A.2d 1353, 1359 (N.H. 1997); Leandro v. State, 488 S.E.2d 249, 255 (N.C. 1997); Abbeville Cnty. Sch. Dist. v. State, 515 S.E.2d 535, 540 (S.C. 1999). Some courts established standards directly fashioned after those in Rose, while others looked at their own state’s statutory and regulatory academic standards as a point of departure in determining the meaning of a constitutional education. See, e.g., Idaho Schs. for Equal Educ. Opportunity, 850 P.2d at 724; Abbott by Abbott v. Burke, 693 A.2d 417, 427 (N.J. 1997); Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475, 484 (Sup. Ct. 2001); Edgewood Indep. Sch. Dist. v. Kirby, 917 S.W.2d 717, 730 (Tex. 1995). In this latter respect, courts sought to hold state legislatures to their own word by incorporating statutory or regulatory standards into the constitutional meaning of an adequate education.

The cases below develop the theories from each of these waves of litigation, along with the various doctrinal and practical issues they raise. As you explore them, consider (1) whether there are significant differences between adequacy and equity theories or whether the theories are simply variations on the attempt to achieve the same end; (2) why courts have been more receptive to adequacy theories; (3) whether adequacy is actually possible without also ensuring equity; (4) whether courts are overstepping their institutional authority and competency when they intervene in school policy and finance; and (5) what role, if any, the federal government should play in encouraging or forcing more equity and adequacy.

1. The Fundamental Right to an Equitable Education

As noted above, the California Supreme Court in Serrano v. Priest, 487 P.2d 1241, 1258 (Cal. 1971), had found that education was a fundamental right under the U.S. Constitution prior to the Supreme Court’s opinion in San Antonio v. Rodriguez. After the Court rejected this position in Rodriguez, the California litigants returned to their state supreme court to argue that, under the state constitution, education was a fundamental right and wealth was a suspect classification. In most respects, these arguments were indistinguishable from those in Rodriguez.173 They simply proceeded under state equal protection rather than federal. As you read the following case, consider whether there is any reason why education would be a fundamental right for state purposes but not federal.

Serrano v. Priest

557 P.2d 929 (Cal. 1977)

In Serrano I this court was faced at the outset with the task of choosing the proper equal protection standard to be applied. “[T]he United States Supreme Court,” we pointed out, “has employed a two-level test for measuring legislative classifications against the equal protection clause. ‘In the area of economic regulation, the high court has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. On the other hand, in cases involving “suspect classifications” or touching on “fundamental interests,” the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. Under the strict standard, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.”

During the progress of trial proceedings below, the United States Supreme Court rendered its decision in San Antonio School District v. Rodriguez[, holding that strict scrutiny was inappropriate because poverty is not a suspect class and education is not a fundamental right under the federal constitution.] We think it is clear that Rodriguez undercuts our decision in Serrano I to the extent that we held the California public school financing system to be invalid as in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. However, as we made clear in footnote 11, our decision in Serrano I was based not only on the provisions of the federal Constitution but on the provisions of our own state Constitution as well.

Our footnote 11 read as follows: “The complaint also alleges that the financing system violates…the California Constitution. Section 11 [of the Constitution] provides: ‘All laws of a general nature shall have a uniform operation.’ Section 21 states: ‘No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.’ We have construed these provisions as ‘substantially the equivalent’ of the equal protection clause of the Fourteenth Amendment to the federal Constitution. Consequently, our analysis of plaintiffs’ federal equal protection contention is also applicable to their claim under these state constitutional provisions.” The first question here facing us is that of the proper interpretation of the foregoing two sentences in light of Rodriguez.

As Serrano I makes clear, our state equal protection provisions, while “substantially the equivalent of” the guarantees contained in the Fourteenth Amendment to the United States Constitution, are possessed of an independent174 vitality which, in a given case, may demand an analysis different from that which would obtain if only the federal standard were applicable. We have recently stated in a related context: “[I]n the area of fundamental civil liberties—which includes all protections of the California Declaration of Rights—we sit as a court of last resort, subject only to the qualification that our interpretations may not restrict the guarantees accorded the national citizenry under the federal charter. In such constitutional adjudication, our first referent is California law and the full panoply of rights Californians have come to expect as their due. Accordingly, decisions of the United States Supreme Court defining fundamental rights are persuasive authority to be afforded respectful consideration, but are to be followed by California courts only when they provide no less individual protection than is guaranteed by California law.”

Thus, the fact that a majority of the United States Supreme Court have now chosen to contract the area of active and critical analysis under the strict scrutiny test for federal constitutional purposes can have no effect upon the existing construction and application afforded our own constitutional provisions. Nor can the additional fact—if it be a fact—that certain of the high court’s former decisions (which may have been relied upon by us in Serrano I) may not be expected to thrive in the shadow of Rodriguez cause us to withdraw from the principles we there announced on state as well as federal grounds.

For these reasons then, we now adhere to our determinations, made in Serrano I, that for the reasons there stated and for purposes of assessing our state public school financing system in light of our state constitutional provisions guaranteeing equal protection of the laws (1) discrimination in educational opportunity on the basis of district wealth involves a suspect classification, and (2) education is a fundamental interest. Because the school financing system here in question has been shown by substantial and convincing evidence produced at trial to involve a suspect classification (insofar as this system, like the former one, draws distinctions on the basis of district wealth), and because that classification affects the fundamental interest of the students of this state in education, we have no difficulty in concluding today, as we concluded in Serrano I, that the school financing system before us must be examined under our state constitutional provisions with that strict and searching scrutiny appropriate to such a case.

We are fortified in reaching this conclusion by language appearing in the Rodriguez decision itself. The high court, in passing upon the validity of the Texas system under the federal equal protection clause, repeatedly emphasized its lack of “expertise” and familiarity with local problems of school financing and educational policy, which lack “counsel[ed] against premature interference with informed judgments made at the state and local levels.” These considerations, in conjunction with abiding concerns from the standpoint of federalism, in the high court’s view “buttress[ed its] conclusion that Texas’ system of public school finance is an inappropriate candidate for strict judicial scrutiny.” This court, on the other hand, in addressing the instant case occupies a position quite different from that of the high court in Rodriguez. The constraints of federalism, so necessary to the proper functioning of our unique system of national government, are not applicable to this court in its determination of whether our own175 state’s public school financing system runs afoul of state constitutional provisions. Moreover, while we cannot claim that we have achieved the perspective of “expertise” on the subjects of school financing and educational policy, our deliberations in this matter have had the benefit of a thoughtfully developed trial record, comprehensive if not exhaustive findings on the part of an able trial judge, and voluminous briefing by the parties and no less than nine amici curiae, among which are included the state Superintendent of Public Instruction. We believe that this background amply equips us to undertake the searching judicial scrutiny of our state’s public school financing system which is required of us under our state constitutional provisions guaranteeing equal protection of the laws.

We point out in closing, however, that our application of the strict scrutiny test in this case should in no way be interpreted to imply an acceptance of the theory by which the Rodriguez approach to assessing “fundamentalness” in affected rights is applied by analogy in the state sphere. Suffice it to say that we are constrained no more by inclination than by authority to gauge the importance of rights and interests affected by legislative classifications wholly through determining the extent to which they are “explicitly or implicitly guaranteed” by the terms of our compendious, comprehensive, and distinctly mutable state Constitution. In applying our state constitutional provisions guaranteeing equal protection of the laws we shall continue to apply strict and searching judicial scrutiny to legislative classifications which, because of their impact on those individual rights and liberties which lie at the core of our free and representative form of government, are properly considered “fundamental.”

For the reasons above stated, we have concluded that the state public school financing system here under review, because it establishes and perpetuates a classification based upon district wealth which affects the fundamental interest of education, must be subjected to strict judicial scrutiny in determining whether it complies with our state equal protection provisions. Under this standard the presumption of constitutionality normally attaching to state legislative classifications falls away, and the state must shoulder the burden of establishing that the classification in question is necessary to achieve a compelling state interest. Basing our determination upon the amply supported factual findings of the trial court, we conclude without hesitation that the trial court properly determined that the state failed to bear this burden.

The system in question has been found by the trial court, on the basis of substantial and convincing evidence, to allow[] the availability of educational opportunity to vary as a function of the assessed valuation of taxable property within a given district. The state interest advanced in justification of this discrimination continues to be that of local control of fiscal and educational matters. However, the trial court has found that asserted interest to be chimerical from the standpoint of those districts which are less favored in terms of taxable wealth per pupil, and we ourselves, after a thorough examination of the record, are in wholehearted agreement with this assessment.

The admitted improvements to the system which were wrought by the Legislature following Serrano I have not been and will not in the foreseeable future be sufficient to negate those features of the system which operate to176 perpetuate this inequity. Foremost among these—especially in a period of rising inflation and restrictive revenue limits—is the continued availability of voted tax overrides which, while providing more affluent districts with a ready means for meeting what they conceive as legitimate and proper educational objectives, will be recognized by the poorer districts, unable to support the passage of such overrides in order to meet equally desired objectives, as but a new and more invidious aspect of that “cruel illusion” which we found to be inherent in the former system. In short, what we said in our former opinion in this respect is equally true here. “[S]o long as the assessed valuation within a district’s boundaries is a major determinant of how much it can spend for its schools, only a district with a large tax base [per ADA] will be truly able to decide how much it really cares about education. The poor district cannot freely choose to tax itself into an excellence which its tax rolls cannot provide. Far from being necessary to promote local fiscal choice, the present financing system actually deprives the less wealthy districts of that option.”

It is accordingly clear that the California public school financing system here under review, because it renders the educational opportunity available to the students of this state a function of the taxable wealth of the districts in which they live, has not been shown by the state to be necessary to achieve a compelling state interest.

NOTES AND QUESTIONS

1. In Serrano I, the court had not given clear separate treatment to whether education was a fundamental right under the state and U.S. Constitutions. Rather, it had indicated that it would apply the same scrutiny under state law that federal law required. Does the court in Serrano II provide a compelling explanation for why it will now apply a different level of scrutiny? Are the concepts of equal protection and fundamental rights under state law different than federal law, or is this an example of a court having already reached an outcome in an early case and now using any rationale necessary to support that holding?

2. What issues presented obstacles to the Court in Rodriguez that the California Supreme Court argues are not obstacles at the state level? Does the California Supreme Court’s opinion suggest that there really were no obstacles in Rodriguez and that the Court simply did not want to act, or is there something fundamentally different about challenging educational inequities in the state court?

3. Three sections of the California Constitution explicitly mention education. Article IX, Section 1, provides: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” Article IX, Section 5, provides: “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district177 at least six months in every year, after the first year in which a school has been established.” Article XVI, Section 8 (formerly article XIII, Section 15), provides: “From all state revenues there shall first be set apart the monies to be applied by the state for support of the public school system and public institutions of higher education.” Do these clauses explain the different outcome in state court? Could the U.S. Supreme Court have cited to state constitutions to distinguish inequities in education from those in other areas and justify higher scrutiny?

4. If education is a fundamental right under state law, does it change the level of scrutiny applicable in a federal equal protection challenge to educational inequity?

Shortly after Serrano I, the New Jersey Supreme Court took up its own school finance case in Robinson v. Cahill, 303 A.2d 273 (N.J. 1973). Rather than base its decision on education as a fundamental right or wealth as a suspect class, the court found that its education clause required a thorough and efficient system of schools, which the state’s funding system was insufficient to deliver. Id. at 294, 297. Interestingly, the Robinson court had prepared, but not released, its decision when the U.S. Supreme Court decided San Antonio v. Rodriguez. Thus, before releasing it, the New Jersey Supreme Court took the opportunity to add a section to its opinion explaining its outcome in relation to the rationale of Rodriguez:

Conceivably a State Constitution could be more demanding [than the U.S. Constitution]. For one thing, there is absent the principle of federalism which cautions against too expansive a view of a federal constitutional limitation upon the power and opportunity of the several States to cope with their own problems in the light of their own circumstances. The majority in Rodriguez expressly noted that “every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system,” adding that “it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State.”

We go then to the question whether our State guarantee of equal protection is offended. [While Rodriguez indicated that a “compelling state interest” doctrine would apply to federal fundamental rights,] we are not prepared to accept that concept for State constitutional purposes. We have no difficulty with the thought that a discrimination which may have an invidious base is “suspect” and will be examined closely. And if a discrimination of that kind is found, the inquiry may well end, for it is not likely that a State interest could sustain such a discrimination. But we have not found helpful the concept of a “fundamental” right. No one has successfully defined the term for this purpose. Even the proposition discussed in Rodriguez, that a right is “fundamental” if it is explicitly or implicitly guaranteed in the Constitution, is immediately vulnerable, for the right to acquire and hold property is guaranteed in the Federal and State Constitutions, and surely that right is not a likely candidate for such preferred treatment. And if a right is somehow found to be “fundamental,” there remains the question as to what State interest is “compelling” and there, too, we find little, if any, light. Mechanical approaches to the delicate problem of178 judicial intervention under either the equal protection or the due process clauses may only divert a court from the meritorious issue or delay consideration of it. Ultimately, a court must weigh the nature of the restraint or the denial against the apparent public justification, and decide whether the State action is arbitrary. In that process, if the circumstances sensibly so require, the court may call upon the State to demonstrate the existence of a sufficient public need for the restraint or the denial.

Id. at 282.

The Connecticut Supreme Court’s opinion in Horton v. Meskill was the next major school finance decision after Serrano and Robinson. Given that New Jersey had taken a differing approach from Serrano, the court in Horton had the opportunity to choose between two modes of analysis. The Connecticut Supreme Court adopted the fundamental rights approach of Serrano. It also further developed the concept of a fundamental right to education under state law, offering a more complete rationale than the court in Serrano II. The fundamental rights approach to education finance reform would go on to dominate for, at least, the next decade. But, as the next section of this chapter reveals, New Jersey’s approach was the forerunner to the educational adequacy movement that would gain steam a decade later.

Horton v. Meskill

376 A.2d 359 (Conn. 1977)

[Plaintiffs seek] by declaratory judgment a judicial determination as to whether the Connecticut educational finance system violates constitutional equal rights and equal protection guarantees and is constitutionally mandated “appropriate legislation” to provide free public elementary and secondary schools in the state. The questions presented are not only of great importance but of considerable complexity, and it is of small comfort to note that members of the judiciary throughout the country are also being faced with the same or similar complex questions.

[T]he relevant provisions of the state constitutions on which the plaintiffs rely [provide: [1]] “There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.”[2] “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”[3] “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”

The Superior Court declared that the present system of financing public education in Connecticut insofar as the system purports to delegate to the town of Canton the duty of raising taxes to operate free public elementary and secondary schools and insofar as it purports to delegate to Canton the duty of operating and maintaining free public elementary and secondary schools violates the constitution of Connecticut.

179

[I]

The public schools in Canton, like those of all other towns in the state, are financed primarily by two means: funds raised by the town by assessment on property within the town and funds distributed by the state pursuant to legislation providing for a flat grant depending on the average number of pupils attending school daily. This grant is usually referred to as the ADM (average daily membership) grant. The ADM grant paid during 1973-74 was $215 per pupil and has since been increased to $250 per pupil. It has been the principal source of the state’s contribution to local public school education for about three decades though, by statute, the state provides for various other grant payments to each town or district for public and nonpublic school programs and activities. These include grants for exceptional and handicapped students, for school construction, and for student transportation.

In Connecticut, the percentage contribution of the local, state, and federal governments has been approximately 70 percent local, 20 to 25 percent state, and 5 percent or less federal. This contrasts with the average figures nationally of 51 percent local, 41 percent state, and 8 percent federal. Funds raised by local governments for local public school education come principally from one source: the local property tax. For the year 1972-73, 80.1 percent of the state aid for local public school operating expenses was distributed as a flat grant that was not based upon the ability of the towns to finance education, 12.6 percent came from the reimbursement grant for special education, and 7.3 percent came from twelve miscellaneous grants, none of which was distributed on the basis of a town’s ability to finance education.

The total average statewide per pupil expenditure as reported by the state board of education for the year 1972-73 was $1091. Because local property taxes are the principal source of revenue for local public schools, a significant measure of the ability of the various towns to finance local education is the dollar amount of taxable property per pupil in each town which can be figured by dividing the grand list of a town by the number of pupils. For the 1972-73 school year, wide disparities existed in the effective yield per pupil ranging from approximately $20,000 per pupil to approximately $170,000 per pupil. During that year, the state average was $53,639. In Canton, it was $38,415.

[T]axpayers in property-poor towns such as Canton pay higher tax rates for education than taxpayers in property-rich towns. The higher tax rates generate tax revenues in comparatively small amounts and property-poor towns cannot afford to spend for the education of their pupils, on a per pupil basis, the same amounts that property-rich towns do. These facts were affirmed by a conclusion of the governor’s commission on tax reform: “In short, many towns can tax far less and spend much more; and those less fortunate towns can never catch up in school expenditure because taxes are already as high as homeowners can tolerate. This dual inequity—a family can pay more and get less for its children—is the fundamental issue of school finance.”

The wide disparities that exist in the amount spent on education by the various towns result primarily from the wide disparities that exist in the taxable wealth of the various towns; the present system of financing education in180 Connecticut ensures that, regardless of the educational needs or wants of children, more educational dollars will be allotted to children who live in property-rich towns than to children who live in property-poor towns.

In the 1972-73 school year, the per pupil operating expenses of sample towns were as follows: Darien, $1570.47; West Hartford, $1443.10; Greenwich, $1428.99; Weston, $1332.79; Canton, $945.15; Lisbon, $669.94. The state average was $1054.70. Property-rich towns were and still are able, through higher per pupil expenditures, to provide a substantially wider range and higher quality of educational services than Canton in the areas of course offerings, special education, learning disability teachers and facilities, library resources, television teaching, and in numerous other areas, including higher ratios of classroom teachers to students, specialist teachers to students, guidance counselors to students, and other similar relationships. Because of the two-thirds reimbursement provision of the state aid statute for special education, towns that spend more on special education receive more state aid than towns that spend less.

High education-spending towns, such as Darien, were and are able to obtain more special education funds from the state because they are better able to afford the one-third portion of the expense, better equipped to identify special education problems and better staffed to apply for funds.

An important factor in determining what school system a teacher chooses to teach in is the school’s salary scale. Although over 80 percent of Canton’s educational budget goes to teachers’ salaries, in 1973-74, Canton’s average teacher salary was $10,830 compared with $14,175 in West Hartford. Top salary comparisons were $14,990 and $19,140, respectively. Towns with fewer tax resources such as Canton tend to have a higher percentage of inexperienced teachers, especially teachers with only one year of experience or less.

The criteria for evaluating the “quality of education” in a town include the following: (a) size of classes; (b) training, experience and background of teaching staff; (c) materials, books and supplies; (d) school philosophy and objectives; (e) type of local control; (f) test scores as measured against ability; (g) degree of motivation and application of the students; (h) course offerings and extracurricular activities. In most cases, the optimal version of these criteria is achieved by higher per pupil operating expenditures, and because many of the elements of a quality education require higher per pupil operating expenditures, there is a direct relationship between per pupil school expenditures and the breadth and quality of educational programs.

Further findings by the trial court were addressed to consideration of possible means of achieving equality of educational opportunities with further consideration given to the variations in types of education and other variables that may affect the educational program and its cost. It found that equalizing the ability of the various towns to finance education would provide all towns, property-poor and property-rich, with the opportunity to exercise a meaningful choice as to educational services to be offered to students. It found that Connecticut ranked fiftieth among the states in its efforts to distribute aid in such a way as to equalize the abilities of the various towns to finance education, ranked forty-seventh in the percent of educational funding coming from the state and181 second in the percent of education funding coming from local governments, and that of all the existing forms of distributing state funds used throughout the country, the flat grant has the least equalizing effect on local financial abilities.

It further found that substantial progress can be made toward equalizing the financial abilities of the local districts by redistributing the flat grant funds according to a different formula, which can be accomplished without the need for additional state taxes; that equalizing the ability of the various towns to finance education would not require that all towns spend the same amount for the education of each pupil since towns can be left free to choose the level of expenditures appropriate for their circumstances; and that there is no reason why local control needs to be diminished in any degree merely because some financing system other than the present one is adopted.

[T]he court took cognizance of legislation passed by the 1975 session of the General Assembly which increased the state’s flat grant from $215 per pupil to $250 per pupil and provided for “Special Instant Lottery Games” the net proceeds of which were to be used “solely for educational equalization grants to towns[.]” The court found that the $35 per pupil increase in the flat grant has little, if any, effect on equalizing the ability of the various towns to finance education, and that although the instant lottery legislation would provide an additional grant of $12.50 per pupil per year to those towns which fall in the bottom eighty-fifth percentile of all Connecticut towns ranked according to property-taxable wealth and median family income, the effect of the additional lottery fund grant on equalizing the ability of Canton and other property-poor towns to finance education “will be miniscule and not significant.”

[II]

This court has many times noted that the equal protection clauses of the state and federal constitutions have a like meaning and impose similar constitutional limitations. In State v. Rao, we reiterated the controlling principles of law as enunciated by the United States Supreme Court: “Equal protection analysis must commence with a determination of whether a legislative classification…impinges upon a fundamental right. Where the legislation impinges upon a fundamental right…it must be struck down unless justified by a compelling state interest. Where the statute does not involve fundamental rights…the legislation will withstand constitutional attack if the distinction is founded on a rational basis.”

In [San Antonio Independent School District v. Rodriguez], the United States Supreme Court adopted what appears to be a special test for determining whether education is a fundamental constitutional right: “(T)he key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.” The court concluded that no such right was guaranteed by the federal constitution and, accordingly, declined to apply a strict scrutiny test.

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In our consideration of the merits of the present appeals, we have not found material aid in the many decisions from the courts of other jurisdictions since most of them depend upon the controlling and differing provisions of the constitutions in the particular jurisdictions. Nor have we found the Rodriguez test for the fundamentality of the right to an education of particular help although under that test it cannot be questioned but that in the light of the Connecticut constitutional recognition of the right to education it is, in Connecticut, a “fundamental” right.

As other courts have recognized, educational equalization cases are “in significant aspects sui generis” and not subject to analysis by accepted conventional tests or the application of mechanical standards. The wealth discrimination found among school districts differs materially from the usual equal protection case where a fairly defined indigent class suffers discrimination to its peculiar disadvantage. The discrimination is relative rather than absolute. Further, the children living in towns with relatively low assessable property values are afforded public education but, as the trial court found, the education they receive is to a substantial degree narrower and lower in quality than that which pupils receive in comparable towns with a larger tax base and greater ability to finance education. True, the state has mandated local provision for a basic educational program with local option for a program of higher quality but, as the trial court’s finding indicates, that option to a town which lacks the resources to implement the higher quality educational program which it desires and which is available to property-richer towns is highly illusory. As Mr. Justice Marshall put it in his dissent in Rodriguez: “[T]his Court has never suggested that because some ‘adequate’ level of benefits is provided to all, discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action. It mandates nothing less than that ‘all persons similarly circumstanced shall be treated alike.’” With justification, the trial court found merit to the complaints of the plaintiffs about “the sheer irrationality” of the state’s system of financing education in the state on the basis of property values, noting that their argument “‘would be similar and no less tenable should the state make educational expenditures dependent upon some other irrelevant factor, such as the number of telephone poles in the district.’”

We find our thinking to be substantially in accord with the decisions of the New Jersey Supreme Court in Robinson v. Cahill, 303 A.2d 273, and the California Supreme Court in Serrano II, and whether we apply the “fundamentality” test adopted by Rodriguez or the pre-Rodriguez test under our state constitution (as the California Supreme Court did in Serrano II) or the “arbitrary” test applied by the New Jersey Supreme Court in Robinson v. Cahill, we must conclude that in Connecticut the right to education is so basic and fundamental that any infringement of that right must be strictly scrutinized.

“Connecticut has for centuries recognized it as her right and duty to provide for the proper education of the young.” Education is so important that the state has made it compulsory through a requirement of attendance. As early as 1650, the General Court (as the General Assembly was then called) adopted a provision that “euery Towneshipp within this Jurissdiction, after the Lord183 hath increased them to the number of fifty houshoulders, shall then forthwith appoint one within theire Towne to teach all such children as shall resorte to him, to write and read.…And it is further ordered, that where any Towne shall increase to the number of one hundred families or housholders, they shall sett vp a Grammer Schoole, the masters thereof being able to instruct youths so farr as they may bee fitted for the Vniversity.” This same basic educational system has continued to this date, the state recognizing that providing for education is a state duty and function now codified in the constitution, article eighth, §1, with the obligation of overseeing education on the local level delegated to local school boards which serve as agents of the state. The General Assembly has by word, if not by deed, recognized in the enactment of §10-4a of the General Statutes that it is the concern of the state that “each child shall have…equal opportunity to receive a suitable program of educational experiences.” Indeed the concept of equality is expressly embodied in the constitutional provision for distribution of the school fund in the provision (article eighth, §4) that the fund “shall be inviolably appropriated to the support and encouragement of the public schools throughout the state, and for the equal benefit of all the people thereof.”

The present-day problem arises from the circumstance that over the years there has arisen a great disparity in the ability of local communities to finance local education, which has given rise to a consequent significant disparity in the quality of education available to the youth of the state. It was well stated in the memorandum of decision of the trial court, which noted that the “present method (of financing education in the state) is the result of legislation in which the state delegates to municipalities of disparate financial capability the state’s duty of raising funds for operating public schools within that municipality. That legislation gives no consideration to the financial capability of the municipality to raise funds sufficient to discharge another duty delegated to the municipality by the state, that of educating the children within that municipality. The evidence in this case is that, as a result of this duty-delegating to Canton without regard to Canton’s financial capabilities, pupils in Canton receive an education that is in a substantial degree lower in both breadth and quality than that received by pupils in municipalities with a greater financial capability, even though there is no difference between the constitutional duty of the state to the children in Canton and the constitutional duty of the state to the children in other towns.”

We conclude that without doubt the trial court correctly held that, in Connecticut, elementary and secondary education is a fundamental right, that pupils in the public schools are entitled to the equal enjoyment of that right, and that the state system of financing public elementary and secondary education as it presently exists and operates cannot pass the test of “strict judicial scrutiny” as to its constitutionality. These were the basic legal conclusions reached by the court. The remaining conclusions arise from the application of these legal principles to the facts which the court found. The exhaustive finding of facts amply supports the conclusions of the court that the present legislation enacted by the General Assembly to discharge the state’s constitutional duty to educate its children, depending primarily on a local property tax base without regard to the disparity in the financial ability of the towns to finance an educational program and with no significant equalizing state support, is not184 “appropriate legislation” (article eighth, §1) to implement the requirement that the state provide a substantially equal educational opportunity to its youth in its free public elementary and secondary schools.

NOTES AND QUESTIONS

1. What was the extent of the inequality in Connecticut? Which inequities do you find to be the most problematic?

2. What method of analysis does the Connecticut Supreme Court use to determine whether education is a fundamental right: textual language, historical approach to education, the importance of the right? Is the Connecticut Supreme Court more persuasive in justifying its treatment of education as a fundamental right than California? Is Connecticut’s opinion dependent on the specific language of its constitution and statutes, or is its rationale transferrable?

3. If education is a fundamental right, can any inequities (other than trivial ones) survive strict scrutiny? What rationale would justify spending substantially more money in one location than another? Must that inequality produce a differing educational outcome—as in student achievement—to amount to violation, or is it enough that resources are unequal? Should the state be obligated to eliminate inequalities in all respects (such as teachers, facilities, transportation, and curriculum), or only money? Is the point of money to secure equality in these other respects?

4. The Connecticut Supreme Court refrained from ordering the state to implement any specific remedy. What remedy would be necessary to cure the constitutional violation? Is it appropriate for a court to order a specific remedy? If not, what guidelines might you offer the state in shaping a remedy?

PROBLEM

Locate the clause or clauses pertaining to education in your state constitution. Does the language resemble or differ from the education clauses in California’s and Connecticut’s constitutions? Does the language in your state clause provide any basis for recognizing education as a fundamental right? If so, would this fundamental right protect against all educational inequalities or only particular ones? Are there any reasons why a court should not recognize education as a fundamental right? In reaching your conclusions, do not read any modern opinions interpreting the right to education in your state. Instead, focus solely on the constitutional language itself (and potentially any available legislative history or older court opinions interpreting education rights).

2. The Right to a Qualitative Education

The Kentucky Supreme Court in Rose v. Council for Better Education became the first court to detail the meaning of an adequate education, which marked the185 beginning of a new and expanding category of litigation focused on ensuring a certain qualitative level of education rather than an enforcing equity across all districts. As you read the case, pay close attention to (1) any distinctions between education as a fundamental right and a constitutional right to a quality education; (2) whether a fundamental right to education or a right to a quality education is easier to enforce; (3) which approach is most likely to ensure the best outcomes for students; and (4) whether the court is reaching beyond its institutional expertise and capacity in defining a quality education or whether defining a quality education is a necessary part of interpreting an educational clause.

Rose v. Council for Better Education

790 S.W.2d 186 (Ky. 1989)

The issue we decide on this appeal is whether the Kentucky General Assembly has complied with its constitutional mandate to “provide an efficient system of common schools throughout the state.”

In deciding that it has not, we intend no criticism of the substantial efforts made by the General Assembly, nor do we intend to substitute our judicial authority for the authority and discretion of the General Assembly. We are, rather, exercising our constitutional duty in declaring that, when we consider the evidence in the record, and when we apply the constitutional requirement of Section 183 to that evidence, it is crystal clear that the General Assembly has fallen short of its duty to enact legislation to provide for an efficient system of common schools throughout the state. In a word, the present system of common schools in Kentucky is not an “efficient” one in our view of the clear mandate of Section 183. The common school system in Kentucky is constitutionally deficient.

In reaching this decision, we are ever mindful of the immeasurable worth of education to our state and its citizens, especially to its young people. The framers of our constitution intended that each and every child in this state should receive a proper and an adequate education, to be provided for by the General Assembly. This opinion dutifully applies the constitutional test of Section 183 to the existing system of common schools. We do no more, nor may we do any less.

What Is an “Efficient System of Common Schools”?

In a few simple, but direct words, the framers of our present Constitution, set forth the will of the people with regard to the importance of providing public education in the Commonwealth. “General Assembly to provide for school system—The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.” Ky. Const. Sec. 183.

Several conclusions readily appear from a reading of this section. First, it is the obligation, the sole obligation, of the General Assembly to provide for a system of common schools in Kentucky. The obligation to so provide is clear and unequivocal and is, in effect, a constitutional mandate. Next, the school system must be provided throughout the entire state, with no area (or its children) being omitted. The creation, implementation and maintenance of the186 school system must be achieved by appropriate legislation. Finally, the system must be an efficient one.

It is, of course, the last “conclusion” that gives us pause and requires study and analysis. What, indeed, is the meaning of the word “efficient” as used in Section 183?

The Constitutional Debates

A brief sojourn into the Constitutional debates will give some idea of the depth of the delegates’ intention when Section 183 was drafted and eventually made its way into the organic law of this state. It will provide a background for our definition of “efficient.”

Comments of Delegate Beckner on the report which led to the selection of the language in Section 183 reflect the framers’ cognizance of the importance of education and, emphasized that the educational system in Kentucky must be improved. Referring to the education of our children, he admonished the delegates, “do not let us make a mistake in dealing with the most vital question that can come before us.”

After summarizing other achievements made in the proposed new Constitution he continued—“If, however, after accomplishing so much good on these lines—we forget the children, and, in the slightest degree, fail to appreciate the obligations of the State to provide sufficient facilities for training them to be good citizens, we will deserve and receive in the great hereafter anathema, and not ascription of praise.” Incorporating a report made to the Kentucky legislature in 1822, Beckner quoted (referring to a system of common schools): “‘…It is a system of practical equality in which the children of the rich and poor meet upon a perfect level and the only superiority is that of the mind.’” Beckner further declared, “Instruction of children under the auspices of the State has become the settled policy of our people.”

Beckner set out four permanent justifications for and characteristics of state provided schools: 1) The education of young people is essential to the prosperity of a free people[;] 2) The education should be universal and should embrace all children[;] 3) Public education should be supervised by the State, to assure that students develop patriotism and understand our government[;] 4) Education should be given to all—rich and poor—so that our people will be homogeneous in their feelings and desires.

One final passage merits quotation. Since education provided by the State is no longer an open question, the only thing that remains is how it shall be made “most valuable and effective.” Let Mr. Beckner’s answer be a guidepost for all Kentuckians today and in the future: “If public schools have come to stay, if they are a part and parcel of our free institutions, woven into the very web and woof of popular government; and if they are in the future to be the dependence of the people of Kentucky for the instruction of their youth, what is the logic of the situation? Manifestly to encourage and improve them, to seize every opportunity to make them more efficient.…”

Beckner and [quotes from his] fellow delegates [tell] us what this section means[:] The providing of public education through a system of common187 schools by the General Assembly is the most “vital question” presented to them[;] Education of children must not be minimized to the “slightest degree”[;] Education must be provided to the children of the rich and poor alike[;] Education of children is essential to the prosperity of our state[;] Education of children should be supervised by the State[;] There must be a constant and continuing effort to make our schools more efficient[;] We must not finance our schools in a de minimis fashion[;] All schools and children stand upon one level in their entitlement to equal state support.

This Court, in defining efficiency must, at least in part, be guided by these clearly expressed purposes. The framers of Section 183 emphasized that education is essential to the welfare of the citizens of the Commonwealth. By this animus to Section 183, we recognize that education is a fundamental right in Kentucky.

[The Court quoted and discussed previous holdings dating back to the time of the constitutional amendment and, drawing on them, indicated that] this Court, since the adoption of the present Constitution, has, in reflecting on Section 183, drawn several conclusions: 1) The General Assembly is mandated, is duty bound, to create and maintain a system of common schools—throughout the state[;] 2) The expressed purpose of providing such service is vital and critical to the well being of the state[;] 3) The system of common schools must be efficient[;] 4) The system of common schools must be free[;] 5) The system of common schools must provide equal educational opportunities for all students in the Commonwealth[;] 6) The state must control and administer the system[;] 7) The system must be, if not uniform, “substantially uniform,” with respect to the state as a whole[;] 8) The system must be equal to and for all students.

Finally, the financial burden entailed in meeting these responsibilities in no way lessens the constitutional duty. “In short, once the citizens of Kentucky made the voluntary commitment to educate the children of this state in public schools neither the Kentucky General Assembly nor those individuals responsible for discharging the duties imposed on them by the state constitution can abrogate those duties merely because the monetary obligations becomes unexpectedly large or onerous.” The taxpayers of this state must pay for the system, no matter how large, even to the point of being “unexpectedly large or even onerous.”

Before proceeding, therefore, to a definition of “efficient” we must address a point made by the appellants with respect to our authority to enter this fray and to “stick our judicial noses” into what is argued to be strictly the General Assembly’s business. Appellants argue and cite several cases to support their position, that the General Assembly has sole and exclusive authority to determine whether the system of common schools is constitutionally “efficient” and that a Court may not substitute its judgment for that of the General Assembly.

It is textbook law that enactments of the General Assembly have a strong presumption of constitutionality. It is also a textbook law that where legislative discretion is present, the judiciary will be reluctant to interfere. The separation of powers doctrine of the Kentucky Constitution underpins and buttresses these legal theories.

188

In this context, we review the question before us. The ultimate issue is whether the system of common schools in the Commonwealth established by the General Assembly, with respect to the mandate of Section 183, is in compliance with the constitution. Specifically, we are asked—based solely on the evidence in the record before us—if the present system of common schools in Kentucky is “efficient” in the constitutional sense. It is our sworn duty, to decide such questions when they are before us by applying the constitution. The duty of the judiciary in Kentucky was so determined when the citizens of Kentucky enacted the social compact called the Constitution and in it provided for the existence of a third equal branch of government, the judiciary.

The issue before us—the constitutionality of the system of statutes that created the common schools—is the only issue. To avoid deciding the case because of “legislative discretion,” “legislative function,” etc., would be a denigration of our own constitutional duty. To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.

We believe that what these several cases cited as controlling by appellants mean is that great weight should be given to the decision of the General Assembly. We believe they mean that the presumption of constitutionality is substantial. We believe that they mean that legislative discretion—in this specific matter of common schools—is to be given great weight and, we do so in this decision. We do not question the wisdom of the General Assembly’s decision, only its failure to comply with its constitutional mandate. In so doing, we give deference and weight to the General Assembly’s enactments; however, we find them constitutionally deficient.

The judiciary has the ultimate power, and the duty, to apply, interpret, define, construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action serves as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of other branches, or even that of the public.

Other Authority

In our sister and adjoining state of West Virginia, the state Constitution requires that “The legislature shall provide, by general law, for a thorough and efficient system of free schools.” In the landmark case of Pauley v. Kelly, (1979), the West Virginia Supreme Court faced a lawsuit similar to the one before us. The Court engaged in extensive historical analysis, in which it carefully interpreted other states’ constitutional mandates with regard to public education. The court rejected the contention that legislative discretion in public school system matters is determinative[, writing that] “on the threshold question: no court has been hesitant to affirm legislation; many have required specific actions by local boards to bring them to compliance with the constitutional mandate; and legislation has been declared unconstitutional because it failed the mandate. There is ample authority that courts will enforce constitutionally mandated education quality standards.”

189

In turning to the definition of “efficient” the Court, began with definition which was “lexically” founded. “…[T]he mandate,…becomes a command that the education system be absolutely complete, attentive to every detail, extending beyond ordinary parameters, and further, it must produce results without waste.”

Following an analysis of the admitted plethora of legal precedent, the West Virginia Supreme Court adopted a definition of “thorough and efficient.” “We may now define a thorough and efficient system of schools: It develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically.”

We cite Pauley, and quote from it at some length to show that Courts may, should and have involved themselves in defining the standards of a constitutionally mandated educational system.

We consider foreign cases, along with our constitutional debates, Kentucky precedents and the opinion of experts in formulating the definition of “efficient” as it appears in our Constitution.

Opinions of Experts

Numerous well-qualified experts testified in this case. They were all well educated, experienced teachers, educators, or administrators; and all were familiar with the Kentucky system of common schools and with other states’ and national school issues.

Dr. Richard Salmon testified that the concept of efficiency was a three part concept. First, the system should impose no financial hardship or advantage on any group of citizens. Further, local school districts must make comparable tax efforts. Second, resources provided by the system must be adequate and uniform throughout the state. Third, the system must not waste resources.

Dr. Kern Alexander opined that an efficient system is one which is unitary. It is one in which there is uniformity throughout the state. It is one in which equality is a hallmark and one in which students must be given equal educational opportunities, regardless of economic status, or place of residence. He also testified that “efficient” involves pay and training of teachers, school buildings, other teaching staff, materials, and adequacy of all educational resources. Moreover, he, like Dr. Salmon, believed that “efficient” also applies to the quality of management of schools. Summarizing Dr. Alexander’s opinion, an efficient system is unitary, uniform, adequate and properly managed.

The definitions of “efficient” were documented and supported by numerous national and local studies, prepared and authorized by many of the giants of the education profession.

The primary expert for the appellees was a local school superintendent who felt that an efficient system is one which is operated as best as can be with the money that was provided. We reject such a definition which could result in a system of common schools, efficient only in the uniformly deplorable conditions it provides throughout the state.

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In summary the experts in this case believed that an “efficient” system of common schools should have several elements: 1) The system is the sole responsibility of the General Assembly[;] 2) The tax effort should be evenly spread[;] 3) The system must provide the necessary resources throughout the state—they must be uniform[;] 4) The system must provide an adequate education[;] 5) The system must be properly managed.

Definition of “Efficient”

We now hone in on the heart of this litigation. In defining “efficient,” we use all the tools that are made available to us. In spite of any protestations to the contrary, we do not engage in judicial legislating. We do not make policy. We do not substitute our judgment for that of the General Assembly. We simply take the plain directive of the Constitution, and, armed with its purpose, we decide what our General Assembly must achieve in complying with its solemn constitutional duty.

Any system of common schools must be created and maintained with the premise that education is absolutely vital to the present and to the future of our Commonwealth. As Herbert Spencer observed, “Education has for its object the formation of character.” No tax proceeds have a more important position or purpose than those for education in the grand scheme of our government. The importance of common schools and the education they provide Kentucky’s children cannot be overemphasized or overstated.

The sole responsibility for providing the system of common schools is that of our General Assembly. It is a duty—it is a constitutional mandate placed by the people on the 138 members of that body who represent those selfsame people.

The General Assembly must not only establish the system, but it must monitor it on a continuing basis so that it will always be maintained in a constitutional manner. The General Assembly must carefully supervise it, so that there is no waste, no duplication, no mismanagement, at any level.

The system of common schools must be adequately funded to achieve its goals. The system of common schools must be substantially uniform throughout the state. Each child, every child, in this Commonwealth must be provided with an equal opportunity to have an adequate education. Equality is the key word here. The children of the poor and the children of the rich, the children who live in the poor districts and the children who live in the rich districts must be given the same opportunity and access to an adequate education. This obligation cannot be shifted to local counties and local school districts.

As we have indicated, Section 183 requires the General Assembly to establish a system of common schools that provides an equal opportunity for children to have an adequate education. In no way does this constitutional requirement act as a limitation on the General Assembly’s power to create local school entities and to grant to those entities the authority to supplement the state system. Therefore, if the General Assembly decides to establish local school entities, it may also empower them to enact local revenue initiatives to supplement the uniform, equal educational effort that the General Assembly must provide. This191 includes not only revenue measures similar to the special taxes previously discussed, but also the power to assess local ad valorem taxes on real property and personal property at a rate over and above that set by the General Assembly to fund the statewide system of common schools. Such local efforts may not be used by the General Assembly as a substitute for providing an adequate, equal and substantially uniform educational system throughout this state.

Having declared the system of common schools to be constitutionally deficient, we have directed the General Assembly to recreate and redesign a new system that will comply with the standards we have set out. Such system will guarantee to all children the opportunity for an adequate education, through a state system. To allow local citizens and taxpayers to make a supplementary effort in no way reduces or negates the minimum quality of education required in the statewide system.

We do not instruct the General Assembly to enact any specific legislation. We do not direct the members of the General Assembly to raise taxes. It is their decision how best to achieve efficiency. We only decide the nature of the constitutional mandate. We only determine the intent of the framers. Carrying out that intent is the duty of the General Assembly.

A child’s right to an adequate education is a fundamental one under our Constitution. The General Assembly must protect and advance that right. We concur with the trial court that an efficient system of education must have as its goal to provide each and every child with at least the seven following capacities: (i) sufficient oral and written communication skills to enable students to function in a complex and rapidly changing civilization; (ii) sufficient knowledge of economic, social, and political systems to enable the student to make informed choices; (iii) sufficient understanding of governmental processes to enable the student to understand the issues that affect his or her community, state, and nation; (iv) sufficient self-knowledge and knowledge of his or her mental and physical wellness; (v) sufficient grounding in the arts to enable each student to appreciate his or her cultural and historical heritage; (vi) sufficient training or preparation for advanced training in either academic or vocational fields so as to enable each child to choose and pursue life work intelligently; and (vii) sufficient levels of academic or vocational skills to enable public school students to compete favorably with their counterparts in surrounding states, in academics or in the job market.

The essential, and minimal, characteristics of an “efficient” system of common schools, may be summarized as follows: 1) The establishment, maintenance and funding of common schools in Kentucky is the sole responsibility of the General Assembly[;] 2) Common schools shall be free to all[;] 3) Common schools shall be available to all Kentucky children[;] 4) Common schools shall be substantially uniform throughout the state[;] 5) Common schools shall provide equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances[;] 6) Common schools shall be monitored by the General Assembly to assure that they are operated with no waste, no duplication, no mismanagement, and with no political influence[;] 7) The premise for the existence of common schools is that all children in Kentucky have a constitutional right to an adequate education[;] 8) The General Assembly shall192 provide funding which is sufficient to provide each child in Kentucky an adequate education[;] 9) An adequate education is one which has as its goal the development of the seven capacities recited previously.

Summary/Conclusion

We have decided this case solely on the basis of our Kentucky Constitution, Section 183.

We have decided one legal issue—and one legal issue only—viz., that the General Assembly of the Commonwealth has failed to establish an efficient system of common schools throughout the Commonwealth.

Lest there be any doubt, the result of our decision is that Kentucky’s entire system of common schools is unconstitutional. There is no allegation that only part of the common school system is invalid, and we find no such circumstance. This decision applies to the entire sweep of the system—all its parts and parcels. This decision applies to the statutes creating, implementing and financing the system and to all regulations, etc., pertaining thereto. This decision covers the creation of local school districts, school boards, and the Kentucky Department of Education to the Minimum Foundation Program and Power Equalization Program. It covers school construction and maintenance, teacher certification—the whole gamut of the common school system in Kentucky.

While individual statutes are not herein addressed specifically or considered and declared to be facially unconstitutional, the statutory system as a whole and the interrelationship of the parts therein are hereby declared to be in violation of Section 183 of the Kentucky Constitution. Just as the bricks and mortar used in the construction of a schoolhouse, while contributing to the building’s facade, do not ensure the overall structural adequacy of the schoolhouse, particular statutes drafted by the legislature in crafting and designing the current school system are not unconstitutional in and of themselves. Like the crumbling schoolhouse which must be redesigned and revitalized for more efficient use, with some component parts found to be adequate, some found to be less than adequate, statutes relating to education may be reenacted as components of a constitutional system if they combine with other component statutes to form an efficient and thereby constitutional system.

Since we have, by this decision, declared the system of common schools in Kentucky to be unconstitutional, Section 183 places an absolute duty on the General Assembly to re-create, re-establish a new system of common schools in the Commonwealth. As we have said, the premise of this opinion is that education is a basic, fundamental constitutional right that is available to all children within this Commonwealth. The General Assembly should begin with the same premise as it goes about its duty. The system, as we have said, must be efficient, and the criteria we have set out are binding on the General Assembly as it develops Kentucky’s new system of common schools.

As we have previously emphasized, the sole responsibility for providing the system of common schools lies with the General Assembly. If they choose to delegate any of this duty to institutions such as the local boards of education, the General Assembly must provide a mechanism to assure that the ultimate control193 remains with the General Assembly, and assure that those local school districts also exercise the delegated duties in an efficient manner.

The General Assembly must provide adequate funding for the system. How they do this is their decision. However, if ad valorem taxes on real and personal property are used by the General Assembly as part of the financing of the redesigned state system of common schools, the General Assembly has the obligation to see that all such property is assessed at 100% of its fair market value. Moreover, because of the great disparity of local tax efforts in the present system of common schools, the General Assembly must establish a uniform tax rate for such property. In this way, all owners of real and personal property throughout the state will make a comparable effort in the financing of the state system of common schools.

This decision has not been reached without much thought and consideration. We do not take our responsibilities lightly, and we have decided this case based on our perception and interpretation of the Kentucky Constitution. We intend no criticism of any person, persons or institutions. We view this decision as an opportunity for the General Assembly to launch the Commonwealth into a new era of educational opportunity which will ensure a strong economic, cultural and political future.

NOTES AND QUESTIONS

1. In Brown v. Board of Education, the Court specifically directed the litigants to examine the original intent of the framers of the Fourteenth Amendment in regard to segregation. The Court in Brown indicated that the legislative history was inconclusive, although some argued that it was conclusive but at odds with the Court’s desired outcome. Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 447 (2004); Mark V. Tushnet, Following the Rules Laid Down: A Critique of “Interpretivism,” and Neutral Principles, 96 Harv. L. Rev. 781, 800 (1983). Putting Brown aside, what is the proper way to interpret constitutional clauses, and to what extent is history relevant? What does the legislative history in Kentucky reveal about the framers’ intent for education? Does affirmative support for and the guarantee of education surprise you given the time at which it was enacted?

2. Many education clauses grew out of the post–Civil War period. Congress conditioned southern states’ readmission to the Union, not only on adopting the Fourteenth and Fifteenth Amendments to the U.S. Constitution, but on making certain changes to their own state constitutions, including some aspects of clauses related to education. John C. Eastman, When Did Education Become a Civil Right? An Assessment of State Constitutional Provisions for Education 1776-1900, 42 Am. J. Legal Hist. 1, 26-27 (1998); Robert F. Williams, The Law of American State Constitutions 90 (2009). The newly enacted education clauses reshaped the legal framework and aspirations for education. For instance, Louisiana’s prewar constitution explicitly apportioned education funds based only on “the number of free white children.” La. Const., tit. VIII, art. 136 (1852). Virginia’s constitution included no provision for education at all.194 Overall, during the antebellum period, only a single state—Wisconsin—enacted a constitutional provision that mandated the education of all children in the state. Eastman, supra, at 17. But, with the exception of Virginia, every state seeking readmission to the Union adopted constitutional language during the postwar period that required their legislatures “to establish and maintain a uniform or thorough system of free schools, for the gratuitous instruction of all children in the State.” Id. at 27.

Also important is the fact that newly freed slaves and other African Americans who served as state representatives during Reconstruction played a dominant role in the enactment of several southern states’ education clauses. See, e.g., At Freedom’s Door: African American Founding Fathers and Lawyers in Reconstruction South Carolina (Underwood & Burke eds., 2000). Having been denied all rights of citizenship and the basic right to read, many surely held lofty expectations for education in their states.

In 2009, the Institute for Educational Equity and Opportunity issued a comprehensive study of the legislative history of the constitutional right to education in all 50 states. Institute for Educational Equity and Opportunity, Education in the 50 States: A Deskbook of the History of State Constitutions and Laws about Education (2009). The book reveals a commitment to education that stretches back to the early colonies and carries forward today with a similarly singular goal of maintaining our democracy by equipping citizens with the education necessary to vote and obtain useful work.

3. As a general matter, which is the constitutionally more sound theory: education as a fundamental right or the right to an adequate education? What, if anything, distinguishes the right to an adequate education from a fundamental right to education? Which is the easiest to enforce? Is one or the other likely to produce better outcomes for students? Is there a flaw in either?

4. What is the overriding tension the court is confronting in recognizing plaintiffs’ claim versus dismissing it? What is the relationship between the court and the state legislature regarding education? Does the court go beyond its authority and encroach on the legislature in any way? Would it have been appropriate for the court to dismiss this case as posing a political question and matters beyond its capacity to decide? If the responsibility for and discretion in delivering education rests solely with the state legislature, how can the court appropriately second-guess the legislature’s delivery of education?

5. What is the relationship between local school districts and the state in Kentucky? Who bears final responsibility for education and why?

6. What type of education does the constitution of Kentucky guarantee, if any, to students? On what basis does this court offer further definition to the constitutional right? Is its analysis compelling?

7. The court lists seven general capacities that students should obtain as part of an adequate education. Does the court reach beyond its institutional expertise and capacity in defining an adequate education in such specific terms, or is this interpretive definition of the educational clause’s meaning precisely the court’s job? Is expert testimony appropriate on the question of the meaning of efficient? How should a court determine whether students are receiving such an education?

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8. Is the reasoning and holding of this case transferrable or relevant to lawsuits in other states? Why does the court discuss cases from other jurisdictions? Do similar opinions in other states minimize the perception that this court is overreaching? Several other state courts cite to or quote Rose’s definition of adequacy in their own analysis of educational rights. See, e.g., Lake View Sch. Dist. No. 25 of Phillips Cnty. v. Huckabee, 91 S.W.3d 472, 487 (Ark. 2002); Claremont Sch. Dist. v. Governor, 703 A.2d 1353, 1359 (N.H. 1997); Leandro v. State, 488 S.E.2d 249, 255 (N.C. 1997).

9. Having found that the state is failing to deliver an efficient system of common schools, what steps does the court indicate the state must now take? Does the court have the authority to mandate a particular result, or does the state have discretion in these steps?

One of the challenges in understanding constitutional rights to education is the diversity in constitutional clauses and court decisions. While they share much in common, each state’s constitutional clause/s and history relating to education are unique. Thus, each state court system must perform its own independent evaluation. For instance, the North Carolina Supreme Court relies heavily on Rose in one respect, but primarily addresses North Carolina–specific issues and themes elsewhere.

Leandro v. State

488 S.E.2d 249 (N.C. 1997)

The right to a free public education is explicitly guaranteed by the North Carolina Constitution: “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” The Constitution also provides: “The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.” The principal question presented by this argument is whether the people’s constitutional right to education has any qualitative content, that is, whether the state is required to provide children with an education that meets some minimum standard of quality. We answer that question in the affirmative and conclude that the right to education provided in the state constitution is a right to a sound basic education.

The Court of Appeals concluded that the right to education guaranteed by the state constitution “is limited to one of equal access to education, and it does not embrace a qualitative standard.” [But t]his Court has long recognized that there is a qualitative standard inherent in the right to education guaranteed by this state’s constitution. The General Assembly also seems to have recognized the constitutional right to a sound basic education and to have embraced that right in the General Statutes. For example, the General Assembly has[, through statutes,] stated: (a) It is the policy of the State of North Carolina to create a196 public school system that graduates good citizens with the skills demanded in the marketplace, and the skills necessary to cope with contemporary society[;] (b) To insure a quality education for every child in North Carolina, and to assure that the necessary resources are provided, it is the policy of the State of North Carolina to provide from State revenue sources the instructional expenses for current operations of the public school system as defined in the standard course of study. In addition, the legislature has required local boards of education “to provide adequate school systems within their respective local school administrative units, as directed by law.” N.C.G.S. §115C-47(1) (Supp. 1996).

We conclude that Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution combine to guarantee every child of this state an opportunity to receive a sound basic education in our public schools. For purposes of our Constitution, a “sound basic education” is one that will provide the student with at least: (1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student’s community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society. See generally Rose v. Council for Better Educ., 790 S.W.2d 186, 212 (Ky. 1989).

We first look to the North Carolina Constitution itself to determine whether it provides a basis for relief [for alleged inequities and inadequacies]. It places upon the General Assembly the duty of providing for “a general and uniform system of free public schools…wherein equal opportunities shall be provided for all students.” N.C. Const. art. IX, §2(1). We conclude that at the time this provision was originally written in 1868 providing for a “general and uniform” system but without the equal opportunities clause, the intent of the framers was that every child have a fundamental right to a sound basic education which would prepare the child to participate fully in society as it existed in his or her lifetime. The 1970 amendment adding the equal opportunities clause ensured that all the children of this state would enjoy this right.

Although we have concluded that the North Carolina Constitution requires that access to a sound basic education be provided equally in every school district, we are convinced that the equal opportunities clause of Article IX, Section 2(1) does not require substantially equal funding or educational advantages in all school districts. We have considered the language and history underlying this and other constitutional provisions concerned with education as well as former opinions by this Court. As a result, we conclude that provisions of the current state system for funding schools which require or allow counties to help finance their school systems and result in unequal funding among the school districts of the state do not violate constitutional principles.

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Article IX, Section 2(2) of the North Carolina Constitution expressly authorizes the General Assembly to require that local governments bear part of the costs of their local public schools. Further, it expressly provides that local governments may add to or supplement their school programs as much as they wish. The General Assembly may assign to units of local government such responsibility for the financial support of the free public schools as it may deem appropriate. The governing boards of units of local government with financial responsibility for public education may use local revenues to add to or supplement any public school or post-secondary school program.

Because the North Carolina Constitution expressly states that units of local governments with financial responsibility for public education may provide additional funding to supplement the educational programs provided by the state, there can be nothing unconstitutional about their doing so or in any inequality of opportunity occurring as a result.

Further, as the North Carolina Constitution so clearly creates the likelihood of unequal funding among the districts as a result of local supplements, we see no reason to suspect that the framers intended that substantially equal educational opportunities beyond the sound basic education mandated by the Constitution must be available in all districts. A constitutional requirement to provide substantial equality of educational opportunities in every one of the various school districts of the state would almost certainly ensure that no matter how much money was spent on the schools of the state, at any given time some of those districts would be out of compliance. If strong local public support in a given district improved the educational opportunities of that district to the point that they were substantially better than those of any other district, the children of all the other school districts by definition would be denied substantially equal educational opportunities. The result would be a steady stream of litigation which would constantly interfere with the running of the schools of the state and unnecessarily deplete their human and fiscal resources as well as the resources of the courts.

We believe that even greater problems of protracted litigation resulting in unworkable remedies would occur if we were to recognize the purported right to equal educational opportunities in every one of the state’s districts. We conclude that the framers of our Constitution did not intend to set such an impractical or unattainable goal. Instead, their focus was upon ensuring that the children of the state have the opportunity to receive a sound basic education.

For the foregoing reasons, we conclude that Article IX, Section 2(1) of the North Carolina Constitution requires that all children have the opportunity for a sound basic education, but it does not require that equal educational opportunities be afforded students in all of the school districts of the state.

We have concluded that the North Carolina Constitution does guarantee every child of the state the opportunity to receive a “sound basic education” as we have defined that phrase in this opinion. We have announced that definition with some trepidation. We recognize that judges are not experts in education and are not particularly able to identify in detail those curricula best designed to ensure that a child receives a sound basic education. However, it is the duty of this Court under the North Carolina Constitution to be the final authority in198 interpreting that constitution, and the definition we have given of a “sound basic education” is that which we conclude is the minimum constitutionally permissible.

[T]he courts of the state must grant every reasonable deference to the legislative and executive branches when considering whether they have established and are administering a system that provides the children of the various school districts of the state a sound basic education. A clear showing to the contrary must be made before the courts may conclude that they have not. Only such a clear showing will justify a judicial intrusion into an area so clearly the province, initially at least, of the legislative and executive branches as the determination of what course of action will lead to a sound basic education.

But like the other branches of government, the judicial branch has its duty under the North Carolina Constitution. If on remand of this case to the trial court, that court makes findings and conclusions from competent evidence to the effect that defendants in this case are denying children of the state a sound basic education, a denial of a fundamental right will have been established. It will then become incumbent upon defendants to establish that their actions denying this fundamental right are “necessary to promote a compelling governmental interest.” If defendants are unable to do so, it will then be the duty of the court to enter a judgment granting declaratory relief and such other relief as needed to correct the wrong while minimizing the encroachment upon the other branches of government.

NOTES AND QUESTIONS

1. What right does the court recognize in regard to education, and where does that right originate from? How is that right distinct from the one alleged in San Antonio v. Rodriguez and other equity cases? Note that the court combined fundamental rights analysis with adequacy, holding that students have a fundamental right to a sound basic education. Does this approach limit the problem of potentially subjecting all educational inequity to strict scrutiny?

2. How is state funding of schools implicated, if at all, by a qualitative right to a sound basic education? Is the right in Leandro a right to school funding or something else? Does this distinction matter? See Derek W. Black, Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373, 390-404 (2012) (detailing the various implications of adequacy rights beyond just money); James E. Ryan, Schools, Race and Money, 109 Yale L.J. 249, 308 (1999) (arguing that the right to an adequate or equal education encompasses far more than just money). How might a right to a qualitative education be broader than a right to school funding?

3. How is this qualitative right to education to be measured? In a portion of the opinion not reprinted here, the court indicates that on remand the trial court should examine schools’ ability to meet the educational goals and standards found in state statutes, student performance on standardized tests, and per-pupil199 expenditures, although the court emphasizes that these are not exclusive factors and are not determinative. What other evidence might be relevant?

4. The court is clear that the state constitution does not require equality among all school districts, but only a sound basic education. Is the court motivated by the practical difficulty of ensuring equity and the experience of other states in attempting school finance reform? Can one protect the right to a sound basic education if there is no guarantee of equity? Is the question of whether educational opportunities are adequate partly answered by the level of education that students receive elsewhere? Commentators have argued that, while courts like Leandro have eschewed equity, they still retain some notion of equity in conceptualizing adequacy. See, e.g., Gregory C. Malhoit & Derek W. Black, The Power of Small Schools: Achieving Equal Educational Opportunity Through Academic Success and Democratic Citizenship, 82 Neb. L. Rev. 50, 66-67 (2003). See also Joshua E. Weishart, Transcending Equality Versus Adequacy, 66 Stan. L. Rev. 477 (2014) (analyzing the ways in which adequacy and equity overlap). However, by treating education as a constitutional right with specific qualitative components rather than a general fundamental right subject to strict scrutiny, courts effectively lower the burden of equity and the scrutiny with which inequity will be examined. These courts set a minimum floor below which no district shall fall, but which others are free to exceed. The minimum floor, however, is implicitly related to the general level of education elsewhere.

5. The court in Leandro repeatedly emphasizes that the administration of education is best left to the legislature. It, nonetheless, recognizes the court’s authority and responsibility to intervene under certain circumstances. Is this court more deferential to the legislature than previous courts or is this just feigned deference? What level of deference is appropriate?

6. This chapter is titled “Poverty” rather than “School Finance.” The case excerpts, thus far, have devoted relatively little attention to poor children and their plight and have focused more on doctrinal, financial, practical, and institutional issues. This is not to say that litigants have not framed the issue around poverty and need. For instance, in Leandro, the plaintiff-intervenors argued “that due to the particular demographics of their urban districts, which include many disadvantaged children,” they would also require additional funds to meet the needs of their students. Leandro v. State, 488 S.E.2d 249, 251 (N.C. 1997). The court, however, treated the claim as “repetitious” of the claim “that the state must provide all of its children with the opportunity to receive a sound basic education.” Id. at 252. It is true that, if all students are receiving an adequate education, disadvantaged or poor students would be receiving an adequate education. But does the delivery of an adequate education to disadvantaged students raise issues that warrant specific treatment beyond global issues of school finance and state policy? What additional issues should courts address? Is there any practical or political reason to avoid addressing the plight of poor children with specificity? Does the fact that much of this litigation is brought and financed by school districts rather than students tend to shift the focus to money and policy?

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PROBLEM

Revisit the education clause in your state constitution. To the extent it implies some educational right, is the implication more in the nature of a fundamental right to education or a right to an adequate education? Based on the cases you have read thus far, is the specific language of an education clause determinative on this issue, or are other factors more important? As a practical matter, is adequacy or equity preferable?

3. Demonstrating a Constitutional Violation

Demonstrating educational inadequacy is extremely fact intensive. Trials routinely run months and touch on a number of different issues in districts across an entire state. The following case involves a full record of a plaintiff’s attempt to prove inadequacy and a court’s attempt to categorize and frame the relevant facts.

DeRolph v. Ohio

677 N.E.2d 733 (Ohio 1997)

Today, Ohio stands at a crossroads. We must decide whether the promise of providing to our youth a free, public elementary and secondary education in a “thorough and efficient system” has been fulfilled. The importance of this case cannot be overestimated. It involves a wholesale constitutional attack on Ohio’s system of funding public elementary and secondary education. Practically every Ohioan will be affected by our decision: the 1.8 million children in public schools and every taxpayer in the state. For the 1.8 million children involved, this case is about the opportunity to compete and succeed.

Upon a full consideration of the record and in analyzing the pertinent constitutional provision, we can reach but one conclusion: the current legislation fails to provide for a thorough and efficient system of common schools, in violation of Section 2, Article VI of the Ohio Constitution.

Ohio’s System of Public School Financing

Ohio’s statutory scheme for financing public education is complex. At the heart of the present controversy is the School Foundation Program (R.C. Chapter 3317) for allocation of state basic aid and the manner in which the allocation formula and other school funding factors have caused or permitted to continue vast wealth-based disparities among Ohio’s schools, depriving many of Ohio’s public school students of high quality educational opportunities.

According to statute, the revenue available to a school district comes from two primary sources: state revenue, most of which is provided through the School Foundation Program, and local revenue, which consists primarily of locally voted school district property tax levies. Federal funds play a minor201 role in the financing scheme. Ohio relies more on local revenue than state revenue, contrary to the national trend.

Under the foundation program, state basic aid is available for school districts that levy at least twenty mills of local property tax revenue for current operating expenses. State basic aid for qualifying school districts is calculated each biennium as part of the General Assembly’s budget pursuant to a formula set forth in R.C. 3317.022.

The “formula amount” has no real relation to what it actually costs to educate a pupil. In fact, Dr. Howard B. Fleeter, Assistant Professor at the School of Public Policy and Management at Ohio State University, stated that the foundation dollar amount “is a budgetary residual, which is determined as a result of working backwards through the state aid formula after the legislature determines the total dollars to be allocated to primary and secondary education in each biennial budget. Thus, the foundation level reflects political and budgetary considerations at least as much as it reflects a judgment as to how much money should be spent on K-12 education.”

The foundation formula amount, which was set at $2,817 per pupil in the 1992-1993 school year is adjusted by a school district equalization factor, now called the “cost of doing business” factor. These rates of adjustment vary from county to county and apply equally to all districts within the county without regard to the actual costs of operations within the individual school districts. The cost-of-doing-business factor assumes that costs are lower in rural districts than in urban districts.

A target amount of combined local and state aid per district is reached by multiplying the formula amount, the cost-of-doing-business factor, and the average daily membership. However, subtracted or “charged off” from that figure is the total taxable value of real and tangible personal property in the district times a certain percentage. Subtracting the applicable charge-off results in a figure constituting basic state aid for the district in question. The effect of an increase in this percentage would be to decrease the amount of basic state aid, resulting in an even greater burden for local schools to fund education through local property and/or income taxes.

The financing scheme is further complicated when special factors are taken into account. For instance, additional appropriations may be made for categorical programs, such as vocational education, special education, and transportation. However, no adjustment is made for the relative wealth of the receiving district. Moreover, children in funded handicapped “units” are not included in the state basic aid formula. Thus, funds for handicapped students, for instance, whose education costs are substantially higher (due to state mandates of small class size and because of related extra services) are disbursed in a flat amount per unit. If the actual cost exceeds the funds received, wealthier districts are in a better position to make up the difference.

In addition, school districts with children whose families collect Aid to Dependent Children (“ADC”) receive additional distributions which increase according to the concentration of ADC pupils. However, the level of distributions freezes once the concentration reaches twenty percent. Thus, districts with higher concentrations of ADC pupils are forced to carry more of the extra202 cost. Moreover, testimony revealed that above the twenty-percent concentration level, educational need increases at a faster rate than the concentration percentage.

The School Foundation Program does contain certain guarantees so that a school district receives the greater of the program amount or the guarantee amount. However, testimony revealed that the guarantees work to the substantial benefit of the wealthier districts and represent a flaw in the system of school funding, because they work against the equalization effect of the formula.

Another weakness in the system is certain “tax reduction factors” introduced to limit growth of real property tax revenues that would otherwise occur as a consequence of inflation of property values. R.C. 319.301 requires the application of tax reduction factors when property values increase due to reappraisal or update. The result is that a school district will receive the same number of dollars from voted tax levies after reappraisal as it did before reappraisal, even though real property valuation in the district has increased through real estate inflation. As a direct result of these tax reduction measures, local revenues cannot keep pace with inflation, and school districts have been required to propose additional tax levies—most of which ultimately fail.

H.B. No. 920 has also resulted in a phenomenon called “phantom revenue.” As already explained, tax reduction factors limit revenue growth that would otherwise occur due to inflation of real property values. However, at the same time, the increased valuation of property is taken into account in the charge-off portion of the foundation formula. Thus, a school district can experience an increase in the valuation of its taxable real property without enjoying any additional income and yet receive less under the formula because the total taxable value of property has increased.

Another inherent weakness in the system stems from forced borrowing. Districts unable to meet their budgets are forced to borrow funds [from the state. If state loans are insufficient, districts must borrow from a commercial lender. To borrow from a commercial lender, local school boards must] declare by resolution that they are unable to remain open for instruction and are unable to meet their expenses. The board must then request that the State Auditor determine that such a condition exists. If the Auditor finds that the board has exhausted all available revenue sources, the Auditor must certify that finding to the Superintendent of Public Instruction and the State Board of Education and must also certify the amount of operating deficit the district will have at the end of the fiscal year. A school district that has been certified as having a projected operating deficit must apply for a loan from a commercial lender. However, if the commercial loan is denied, a school district must submit a plan for reducing the district’s budget. The budget reduction plan must provide for repayment of the loan within two years (ten years for very large amounts), but the plan need not provide for repayment of any spending reserve loan. The loan is repaid by diverting funds otherwise available to the school district under the School Foundation Program to the commercial lender. R.C. 3313.483(E)(3).

The debt which stems from mandated borrowing programs is in many instances staggering, and the cyclical effect of continued borrowing has made203 it more difficult to maintain even minimal school operations. See R.C. 133.301 and 3313.483. These loan programs, discussed above, are nothing less than a clever disguise for the state’s failure to raise revenue sufficient to discharge its constitutional obligations.

The School Foundation Program contains no aid expressly for capital improvements for Ohio’s public schools. Aid for that purpose is provided by the Classroom Facilities Act, R.C. Chapter 3318. However, the evidence showed, and the trial court found, that the Act is insufficiently funded to meet the needs of districts that are poor in real property value.

A “Thorough and Efficient System of Common Schools”

In urging this court to strike the statutory provisions relating to Ohio’s school financing system, appellants argue that the state has failed in its constitutional responsibility to provide a thorough and efficient system of public schools. We agree.

Section 2, Article VI of the Ohio Constitution requires the state to provide and fund a system of public education and includes an explicit directive to the General Assembly: “The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State.”

[Legislative history and our prior decisions have “construed the words ‘thorough and efficient’ ” to mean a ‘system of schools throughout the state’ that is not local, not municipal, but state-wide.” Moreover, a “thorough system could not mean one in which part or any number of the school districts of the state were starved for funds. An efficient system could not mean one in which part or any number of the school districts of the state lacked teachers, buildings, or equipment.”]

[W]e find that exhaustive evidence was presented to establish that the appellant school districts were starved for funds, lacked teachers, buildings, and equipment, and had inferior educational programs, and that their pupils were being deprived of educational opportunity.

In 1989, the General Assembly directed the Superintendent of Public Instruction to conduct a survey of Ohio’s public school buildings. The purpose of this survey was to determine the cost of bringing all facilities into compliance with state building codes and asbestos removal requirements, as well as all other state and local provisions related to health and safety. The results of this study were published in the 1990 Ohio Public School Facility Survey. The survey identified a need for $10.2 billion in facility repair and construction. Among its findings, the survey determined that one-half of Ohio’s school buildings were fifty years old or older, and fifteen percent were seventy years old or older. A little over half of these buildings contained satisfactory electrical systems; however, only seventeen percent of the heating systems and thirty-one percent of the roofs were deemed to be satisfactory. Nineteen percent of the windows and twenty-five percent of the plumbing and fixtures were found to be adequate. Only twenty percent of the buildings had satisfactory handicapped204 access. A scant thirty percent of the school facilities had adequate fire alarm systems and exterior doors.

Over three years after the 1990 survey was published, the current Superintendent of Public Instruction, John Theodore Sanders, averred that his visits to Ohio school buildings demonstrated that some students were “making do in a decayed carcass from an era long passed,” and others were educated in “dirty, depressing places.”

Robert Franklin, the Building Assistance Supervisor for the Ohio Department of Education, gave disturbing examples of incidents where the health and safety of students were threatened. In Buckeye Local, Belmont County, three hundred students were hospitalized because carbon monoxide leaked out of heaters and furnaces. In another school district in Wayne County, an elementary school built in 1903 had floors so thin that a teacher’s foot went through the floor while she was walking across her classroom.

Another major health and safety hazard is asbestos, which has yet to be removed from 68.6 percent of Ohio’s school buildings, in direct violation of a 1987 mandate by the United States Environmental Protection Agency. In fact, over ninety-nine percent of public school structures in Ohio have asbestos in them. For fiscal year 1990, over two hundred forty school districts applied for $140,000,000 in asbestos-abatement money from the state. Only sixty-three districts received funds.

Other conditions which existed within the appellant school districts were equally deplorable. In the Dawson-Bryant school system, where a coal heating system is used, students are subjected to breathing coal dust that is emitted into the air and actually covers the students’ desks after accumulating overnight. Band members are forced to use a former coal bin for practice sessions where there is no ventilation whatsoever, causing students to complain of headaches. Special education classes are also held in a former closet that has one bare lightbulb hanging from the ceiling.

Deering Elementary is not handicapped accessible. The library is a former storage area located in the basement. Handicapped students have to be carried there and to other locations in the building. One handicapped third-grader at Deering had never been to the school library because it was inaccessible to someone in a wheelchair.

Equally alarming are the conditions found in the Southern Local School District in Perry County, where buildings are crumbling and chunks of plaster fall from the walls and ceiling. In fact, the problem was so severe that the principal and custodians at Miller Junior High at Shawnee deliberately knocked plaster off the ceilings so that the plaster would not fall on the students during the day.

Obviously, state funding of school districts cannot be considered adequate if the districts lack sufficient funds to provide their students a safe and healthy learning environment.

In addition to deteriorating buildings and related conditions, it is clear from the record that many of the school districts throughout the state cannot provide the basic resources necessary to educate our youth. For instance, many of the appellant school districts have insufficient funds to purchase textbooks and must205 rely on old, outdated books. For some classes, there were no textbooks at all. For example, at Southern Local during the 1992-1993 school year, none of the students in a Spanish I class had a textbook at the beginning of the year. Later, there was a lottery for books. Students who picked the lucky numbers received a book.

The accessibility of everyday supplies is also a problem, forcing schools to ration such necessities as paper, chalk, art supplies, paper clips, and even toilet paper. A system without basic instructional materials and supplies can hardly constitute a thorough and efficient system of common schools throughout the state as mandated by our Constitution.

Additionally, many districts lack sufficient funds to comply with the state law requiring a district-wide average of no more than twenty-five students for each classroom teacher. Ohio Adm. Code 3301-35-03(A)(3). Indeed, some schools have more than thirty students per classroom teacher, with one school having as many as thirty-nine students in one sixth grade class. As the testimony of educators established, it is virtually impossible for students to receive an adequate education with a student-teacher ratio of this magnitude.

The curricula in the appellant school districts are severely limited compared to other school districts and compared to what might be expected of a system designed to educate Ohio’s youth and to prepare them for a bright and prosperous future. For example, elementary students at Dawson-Bryant have no opportunity to take foreign language courses, computer courses, or music or art classes other than band. Junior high students in this district have no science lab. In addition, Dawson-Bryant offers no honors program and no advanced placement courses, which disqualifies some of the students from even being considered for a scholarship or admittance to some universities. Dawson-Bryant is not alone—similar problems were being experienced by each of the appellant school districts.

None of the appellant school districts is financially able to keep up with the technological training needs of the students in the districts. The districts lack sufficient computers, computer labs, hands-on computer training, software, and related supplies to properly serve the students’ needs. In this regard, it does not appear likely that the children in the appellant school districts will be able to compete in the job market against those students with sufficient technological training.

Lack of sufficient funding can also lead to poor academic performance. Proficiency tests are a method of measuring education. The ninth grade proficiency test was designed to measure that body of knowledge pupils are expected to have mastered by the ninth grade. Passage of the ninth grade proficiency test is required before a student may receive a high school diploma. As of the fall of 1993, thirty-two out of ninety-nine seniors at Dawson-Bryant had not passed all parts of the ninth grade proficiency test. This means that nearly one-third of the senior class had not met basic graduation requirements. The district did not have enough money to pay tutors to assist these students. Poor performance on the ninth grade proficiency tests is further evidence that these schools lack sufficient funds with which to educate their students.

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The dissent emphasizes that since schools have complied with minimum standards enacted in 1983, students are being provided with an adequate education. However, in March 1992, the State Superintendent suspended routine minimum standard evaluations. Consequently, these minimum standards have not been regularly enforced since that time.

All the facts documented in the record lead to one inescapable conclusion—Ohio’s elementary and secondary public schools are neither thorough nor efficient. The operation of the appellant school districts conflicts with the historical notion that the education of our youth is of utmost concern and that Ohio children should be educated adequately so that they are able to participate fully in society. Our state Constitution was drafted with the importance of education in mind. In contrast, education under the legislation being reviewed ranks miserably low in the state’s priorities. In fact, the formula amount is established after the legislature determines the total dollars to be allocated to primary and secondary education in each biennial budget. Consequently, the present school financing system contravenes the clear wording of our Constitution and the framers’ intent.

Furthermore, rather than following the constitutional dictate that it is the state’s obligation to fund education (as this opinion has repeatedly underscored), the legislature has thrust the majority of responsibility upon local school districts. This, too, is contrary to the clear wording of our Constitution. The responsibility for maintaining a thorough and efficient school system falls upon the state. When a district falls short of the constitutional requirement that the system be thorough and efficient, it is the state’s obligation to rectify it.

[T]he evidence is overwhelming that many districts are “starved for funds,” and lack teachers, buildings, or equipment. These school districts, plagued with deteriorating buildings, insufficient supplies, inadequate curricula and technology, and large student-teacher ratios, desperately lack the resources necessary to provide students with a minimally adequate education. Thus, it is painfully obvious that the General Assembly, in structuring school financing, has failed in its constitutional obligation to ensure a thorough and efficient system of common schools. Clearly, the current school financing scheme is a far cry from thorough and efficient. Instead, the system has failed to educate our youth to their fullest potential.

[T]he evidence clearly indicates that the funding level set by today’s School Foundation Program has absolutely no connection with what is necessary to provide each district enough money to ensure an adequate educational program. The system in place today differs dramatically from that in place nearly twenty years ago [and upheld by this Court].

We recognize that money alone is not the panacea that will transform Ohio’s school system into a model of excellence. Although a student’s success depends upon numerous factors besides money, we must ensure that there is enough money that students have the chance to succeed because of the educational opportunity provided, not in spite of it. Such an opportunity requires, at the very least, that all of Ohio’s children attend schools which are safe and conducive to learning. At the present, Ohio does not provide many of its students with even the most basic of educational needs.

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NOTES AND QUESTIONS

1. What are the indicia of an inadequate or inefficient education in Ohio? Is this sort of evidence relevant in all school finance cases, regardless of the underlying legal theory? The court also identifies six or more major flaws in Ohio’s finance mechanisms. What rationale explains these mechanisms? Is there any argument that these deficiencies do not demonstrate a constitutional violation?

2. The deficiencies described by the court were particularly egregious in Ohio, but the court does not identify at what point those deficiencies cross the line to become unconstitutional. Would less severe conditions be constitutional? Would this court have intervened in Ohio’s education system if the problem was significant qualitative differences between districts, but none that included the type of deplorable conditions detailed in this opinion? Consider that educational quality spans a large spectrum. A court could theoretically place the constitutional standard at various different places on that spectrum. Some schools may be so low in quality that they would fall below any standard. Where this is true, the prevalence of deplorable school conditions may be as, if not more, important than the standard a court adopts.

3. What if egregious conditions existed, but they were random rather than systematic? When are deficiencies the fault of the local school district rather than the state? Are certain variances and deficiencies inevitable and thus not evidence of a violation, or must the state essentially perfect its education system?

4. Based on the cases you have read thus far, what evidence most compellingly demonstrates a constitutional violation: money, school quality, basic resources, student outcomes? What other types of evidence beyond those discussed in the cases might demonstrate a constitutional violation?

4. Causation

School finance and quality cases hinge on plaintiffs’ ability to prove that educational inequities and qualitative shortfalls are causally connected to a state policy or practice. One might succinctly state the question in most cases as being whether funding variations are the cause of differences in education quality. But the factual inquiry tends to be far more complex, regardless of how definitively a court might state its final causal conclusions. For instance, one might ask whether the state funding formula is the cause of funding variances at the local level or differences in local effort cause the variances. The answer to that question, however, only leads to a second question: If state policy is the cause of local variance, does the variance cause qualitative differences at the local level?

These causal questions address two different and distinct types of causation that plaintiffs must address. First, plaintiffs must establish that a state statute or policy is the cause of some precise financial, resource, or other tangible deficiency in local school districts. Second, plaintiffs must establish that the deficiency, not some other factor, causes educational harm to students. As the North Carolina Supreme Court emphasized: “[I]t is one thing for plaintiffs to demonstrate that a large number of Hoke County students are failing to obtain a sound,208 basic public education. It is quite another for plaintiffs to show that such a failure is primarily the result of action and/or inaction of the State.” Hoke Cty. Bd. of Educ. v. State, 599 S.E.2d 365, 386 (N.C. 2004).

In the earliest years of school finance litigation, some courts were willing to infer causal connections based on general social science or common sense. Subsequent courts increasingly parsed out distinct causal inquiries and required specific supporting statistical evidence. This step in a plaintiff’s claim is far more challenging than establishing the mere fact that students have suffered an educational deprivation at the local level. A state might concede the existence of educational inequities or deprivations at the local level, but the state, if not the court, will inevitably raise the possibility that state action is not the cause of local educational deficiencies. If plaintiffs allege schools do not have enough money to maintain their facilities, for instance, the state will question whether its action or inaction is the cause of the money shortfall. This causal inquiry frequently leads to lengthy judicial discussions of how school financing works and whether the financing system places too much burden on localities. It may be that some similarly situated districts can maintain adequate facilities, while others cannot. If this is the case, local action or random variables may be the cause of deprivations rather than the state.

After establishing a causal connection between state policy and local deficiencies, plaintiffs must also establish a causal connection between the deficiency—for instance, teacher qualifications—and educational outcomes. New York’s highest court provides one of the most poignant delineations of this two-step causation analysis. In analyzing various alleged inadequacies in inputs (teachers, class size, facilities, computers, libraries, and textbooks), the court asked whether each one was causally connected to the deprivation of the constitutionally required education. Campaign for Fiscal Equity v. State, 801 N.E.2d 326, 340-341 (N.Y. 2003). Plaintiffs’ burden was to establish “the necessary ‘causal link’ between the present funding system and the poor performance of City schools.” Id. at 335, 340-341. This means proving that: (1) increased funding leads to “better teachers, facilities and instrumentalities of learning” and (2) better teachers, facilities, and instrumentalities “yield better student performance.” Id. at 340. Speaking of the second link in this causal chain, the court wrote: “[O]n this record it cannot be said that plaintiffs have proved a measurable correlation between building disrepair and student performance.” Id. at 334-335. But in regard to teachers, it concluded that the evidence demonstrated “that better funded schools would hire and retain more certified teachers, and that students with such teachers would score better.” Id. at 340-341.

To reliably address this second step of causation, plaintiffs’ evidence needs to account for any number of variables, including, at the very least, locality costs, locality capacity, and student demographics (poverty, language status, race, and disability). States tend to point to some of these same factors and argue that student characteristics are beyond the state’s control, and that student characteristics—not state policy—are the primary causal factor in student outcomes. See, e.g., Sheff v. O’Neill, 678 A.2d 1267, 1287 (Conn. 1996) (stating that “defendants stress…the significant role that adverse socioeconomic conditions play”); Campaign for Fiscal Equity, Inc., 801 N.E.2d at 341 (examining State’s argument that “children come to the New York City schools ineducable, unfit to209 learn”); Hoke Cty. Bd. of Educ. v. State, 599 S.E.2d 365, 384 (N.C. 2004) (arguing that “students…failing to obtain a sound basic education…is due to factors other than the educational offerings provided by the State”).

5. Separation of Powers Limitations

Litigation over the meaning of state educational clauses tests courts unlike most any other claim. State educational clause litigation tests the institutional authority of courts, whereas desegregation, for instance, tests institutional power. In retrospect, there is little doubt that federal courts had the authority to command desegregation; the question was whether they would have the power to compel it in the face of political resistance. In fact, danger lay with simply testing this issue, for a failed assertion of power would have undermined the Supreme Court’s long-term institutional legitimacy. This danger led the Court to proceed cautiously in desegregation.

State courts adjudicating educational rights face a different, yet equally serious, institutional problem that prompts extreme caution. Courts in the cases you have read thus far routinely acknowledge that they are deciding issues that are at the outer bounds of their competency and jurisdiction. First, state constitutions typically vest authority for delivering educational rights in the state or state legislature. For instance, the North Carolina Constitution states: “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.” N.C. Const. art. I, §15. Similarly, Rhode Island’s constitution provides that “it shall be the duty of the general assembly to promote public schools…and to adopt all means which it may deem necessary and proper to secure to the people the advantages and opportunities of education.” R.I. Const. art. XII, §1. While such clauses obligate states to provide education, they vest vast, if not total, discretion in the legislature as to how to deliver education. Thus, only in rare circumstances would a court have the authority to adjudicate matters relating to that delivery. In short, separation of powers principles place significant constraints on courts.

Second, even if a legislature does not have vast discretion, adjudicating the quality and funding of education can involve pedagogical, value, and political judgments that courts feel ill equipped to resolve. The following case provides an example of a court grappling with these issues and, unlike the previous cases, refusing to entertain a lawsuit under the state’s education clause. It also points out that other courts have done the same.

Committee for Educational Rights v. Edgar

672 N.E.2d 1178 (Ill. 1996)

We first consider the dismissal of plaintiffs’ claims that the statutory system for financing public schools violates the education article of our state constitution. [T]he Illinois Constitution of 1970 provides: “A fundamental goal of the210 People of the State is the educational development of all persons to the limits of their capacities. The State shall provide for an efficient system of high quality public educational institutions and services. Education in public schools through the secondary level shall be free. There may be such other free education as the General Assembly provides by law. The State has the primary responsibility for financing the system of public education.” Ill. Const. 1970, art. X, §1.

Plaintiffs’ challenge to the statutory system for financing public schools is based on the emphasized language above. First, plaintiffs contend that because the system produces vast disparities in the level of funding and educational resources available to various school districts based on differences in local taxable property wealth, it is not “efficient” within the meaning of the constitution. Second, plaintiffs argue that school districts with low property tax bases are unable to provide a “high quality” education to their students due to inadequate funding. Third, plaintiffs contend that under the financing scheme, funding is insufficient to provide a “high quality” education to at-risk children.

We first consider plaintiffs’ argument that the present school funding system is not “efficient” within the meaning of the constitution because it produces disparities in educational resources and services based on differences in local taxable property wealth. In plaintiffs’ view, the efficiency requirement guarantees some measure of equality in educational funding and opportunity. Plaintiffs deny that they seek absolute uniformity in educational offerings or precisely equal spending. Plaintiffs would apparently approve variations in educational spending from district to district based on criteria such as local differences in the costs of resources and special educational needs in particular districts. However, plaintiffs maintain that a school district’s property wealth is “educationally irrelevant” and is not a proper factor upon which to set the level of resources available to the district.

“Efficient” has been defined as follows: “1: serving as or characteristic of an efficient cause: causally productive: Operant 2: marked by ability to choose and use the most effective and least wasteful means of doing a task or accomplishing a purpose.” Webster’s Third New International Dictionary 725 (1981).

This definition does not inherently compel the conclusion that an “efficient system” of public schools necessarily involves statewide parity of educational opportunity and resources. However, we do not believe that the precise meaning of the word “efficient” as used in section 1 of the education article is entirely clear and free from doubt, or that “efficient” could not conceivably be interpreted in the manner that plaintiffs claim. We note that the Court of Appeals of Maryland determined that Maryland’s constitutional requirement that the General Assembly establish a “thorough and efficient” system of free public schools was “on its face plainly susceptible of more than one meaning.” Hornbeck v. Somerset County Board of Education, 458 A.2d 758, 770 (1983). In determining whether the “thorough and efficient” provision required exact equality in per pupil funding and expenditures among Maryland’s school districts, the Hornbeck court deemed it essential to consider the history underlying211 the enactment of the provision. Hornbeck, 458 A.2d at 770. Courts in other jurisdictions with similar constitutional efficiency provisions have also looked to sources beyond the language of the constitution to determine the meaning of those provisions. We shall likewise consider the history underlying the adoption of section 1 of the education article.

The education article of the 1970 Constitution originated as a proposal submitted by the education committee of the Sixth Illinois Constitutional Convention. At the outset, we note that an introductory passage in the education committee’s report on the proposed education article states, “[t]he opportunity for an education, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Considered in isolation, this statement might lend some credence to plaintiffs’ position. However, this general statement of principle was not made in reference to the efficiency requirement or any other specific language in the proposed education article. Instead, as authority for this proposition the education committee report cites Brown v. Board of Education, which was, of course, based on the fourteenth amendment of the United States Constitution. As explained below, specific references in the convention record to the efficiency requirement place the concept in a significantly different light.

The constitutional requirement that the State provide for an efficient system of high quality educational institutions and services corresponds to section 1 of article VIII of the 1870 Constitution, which stated, “The general assembly shall provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education.” Under the 1870 Constitution, this court consistently held that the question of the efficiency and thoroughness of the school system was one solely for the legislature to answer, and that the courts lacked the power to intrude.

However, under a limited exception to this principle it was held that pursuant to the “thorough and efficient” requirement school district boundaries must be established so that the districts are compact and contiguous. As explained in People ex rel. Leighty v. Young, 133 N.E. 693 (1921), “[i]t cannot be said that a system which places the school house at a point so remote that the children of school age cannot reach it conveniently is either thorough or efficient.” School districts organized in contravention of the requirements of compactness and contiguity have been held invalid.

The framers of the 1970 Constitution embraced this limited construction that the constitutional efficiency requirement authorized judicial review of school district boundaries, but they did not intend to otherwise limit legislative discretion. The education committee’s report accompanying the proposed education article specifically states, “The concept of the efficiency of the system (already contained in the present Constitution) has been used by the courts as a guide to the validation of district boundary changes. The Committee believes it useful to continue this concept and to add the notion of high quality.”

Disparity in educational funding was a highly charged and controversial subject during the constitutional convention, but it was not touched upon to any significant degree in connection with section 1’s efficiency requirement. Instead, the debate over unequal opportunities and resources ultimately led to the212 incorporation of section 1’s final sentence, which provides that “[t]he State has the primary responsibility for financing the system of public education.” Ill. Const. 1970, art. X, §1. That language did not appear in the education committee’s originally proposed education article. [That section was added “not [as] a legally obligatory command to the state legislature,” but “only to express a goal or objective, and not to state a specific command.” The framers rejected the previous version because it could have been construed to the contrary.]

In our view, the framers of the 1970 Constitution viewed educational equality and “efficiency” to be separate and distinct subjects. The framers of the 1970 Constitution grappled with the issue of unequal educational funding and opportunity, and chose to address the problem with a purely hortatory statement of principle. To ignore this careful and deliberate choice by interpreting the efficiency requirement as an enforceable guarantee of equality would do violence to the framers’ understanding of the education article.

In view of the foregoing considerations, we agree with the courts below that disparities in educational funding resulting from differences in local property wealth do not offend section 1’s efficiency requirement.

The remaining question under section 1 of the education article pertains to its guarantee of a system of “high quality” educational institutions and services. There is no dispute as to the nature of this guarantee in the abstract. Instead, the central issue is whether the quality of education is capable of or properly subject to measurement by the courts. Plaintiffs maintain that it is the courts’ duty to construe the constitution and determine whether school funding legislation conforms with its requirements and cite a number of decisions from other jurisdictions [to the same effect]. As explained below, however, we conclude that questions relating to the quality of education are solely for the legislative branch to answer.

Historically, this court has assumed only an exceedingly limited role in matters relating to public education, recognizing that educational policy is almost exclusively within the province of the legislative branch. Section 1 of article VIII of the 1870 Constitution provided that “[t]he general assembly shall provide a thorough and efficient system of free schools, whereby all children of this state may receive a good common school education.” As discussed earlier, except in matters relating to school district boundaries, this court consistently held that questions relating to the efficiency and thoroughness of the school system were left to the wisdom of the legislative branch. This principle has likewise been applied with respect to the efficiency requirement in the 1970 Constitution.

More generally, it has been stated that section 1 of article VIII of the 1870 Constitution was both “a mandate to the legislature and a limitation on the exercise of the [legislative] power. The mandate is to provide a thorough and efficient system of schools, and the limitations are that they shall be free to all children of the State and such that all children may receive a good common school education.” People ex rel. Leighty v. Young, 139 N.E. 894 (1923). Yet, while213 the requirement that schools provide a “good common school education” was explicitly recognized to be a limitation on the legislature’s power to enact public school laws, that limitation was not among those held generally capable of judicial enforcement. Fiedler v. Eckfeldt, 166 N.E. 504 (1929), illustrates this subtle but important point: “[Section 1 of article VIII of the 1870 Constitution] was a command addressed to the legislature, and it has been construed as a limitation also on its power to provide for the maintenance by local taxation of free schools of a different character from that named in the section. When we look for the limitations on that power we find these two, and these two only, which the courts can enforce: that the schools shall be free, and that they shall be open to all equally. The court has enforced these limitations when the occasion requiring the enforcement of them arose. There are no others to which the judicial power extends.”

Notwithstanding this jurisprudence, plaintiffs insist that our present constitution accommodates a more active judicial role. In this regard, plaintiffs stress that while the 1870 Constitution specified that the General Assembly shall provide a system of public schools, the 1970 Constitution expressly places that duty on the State. In plaintiffs’ view, the change in language signifies that section 1 of the education article is no longer merely a mandate to the General Assembly, but is a mandate to all three branches of the State government: the executive branch, the legislative branch and the judicial branch. Surely, however, this provision does not alter the roles or expand the powers assigned to the different branches of government by the constitution. Courts may not legislate in the field of public education any more than they may legislate in any other area. In reviewing legislation, the role of the courts is now, as before, to ensure that the enactment does not exceed whatever judicially enforceable limitations the constitution places on the General Assembly’s power. Courts are no more capable of defining “high quality educational institutions and services” under our present constitution than they were able to define a “good common school education” under the 1870 Constitution. As the following exchange during the constitutional convention shows, the framers of the 1970 Constitution did not intend to formulate any specific definition of “high quality,” nor did they anticipate that the concept would be defined by the courts. [As one member of the education committee indicated,] “ ‘Quality,’ I suppose, means different things to different people. We had in mind the highest, the most excellent educational system possible; leave this up to the determination of the legislature and your local districts, and let the citizens keep pushing for higher-quality education. We didn’t attempt to define all of the ramifications of high quality.”

Our constitutional jurisprudence in the field of public education has been guided by considerations of separation of powers. In federal courts, the principles of separation of powers find expression in the so-called “political question” doctrine. The United States Supreme Court has stated that, “ ‘[i]n determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.’ ”

What constitutes a “high quality” education, and how it may best be provided, cannot be ascertained by any judicially discoverable or manageable214 standards. The constitution provides no principled basis for a judicial definition of high quality. It would be a transparent conceit to suggest that whatever standards of quality courts might develop would actually be derived from the constitution in any meaningful sense. Nor is education a subject within the judiciary’s field of expertise, such that a judicial role in giving content to the education guarantee might be warranted. Rather, the question of educational quality is inherently one of policy involving philosophical and practical considerations that call for the exercise of legislative and administrative discretion.

To hold that the question of educational quality is subject to judicial determination would largely deprive the members of the general public of a voice in a matter which is close to the hearts of all individuals in Illinois. Judicial determination of the type of education children should receive and how it can best be provided would depend on the opinions of whatever expert witnesses the litigants might call to testify and whatever other evidence they might choose to present. Members of the general public, however, would be obliged to listen in respectful silence. We certainly do not mean to trivialize the views of educators, school administrators and others who have studied the problems which public schools confront. But nonexperts—students, parents, employers and others—also have important views and experiences to contribute which are not easily reckoned through formal judicial factfinding. In contrast, an open and robust public debate is the lifeblood of the political process in our system of representative democracy. Solutions to problems of educational quality should emerge from a spirited dialogue between the people of the State and their elected representatives.

We are well aware that courts in other jurisdictions have seen fit to define the contours of a constitutionally guaranteed education and to establish judicial standards of educational quality reflecting varying degrees of specificity and deference to the other branches of government. By and large these courts have viewed the process of formulating educational standards as merely an exercise in constitutional interpretation or construction. For the reasons already stated, we disagree; we will not “under the guise of constitutional interpretation, presume to lay down guidelines or ultimatums for [the legislature].”

We conclude that the question of whether the educational institutions and services in Illinois are “high quality” is outside the sphere of the judicial function. To the extent plaintiffs’ claim that the system for financing public schools is unconstitutional rests on perceived deficiencies in the quality of education in public schools, the claim was properly dismissed. For the foregoing reasons, we affirm the dismissal of plaintiffs’ claims under the education article of our state constitution.

We next consider whether the alleged disparities in educational funding and opportunity due to variations in local property wealth give rise to a cause of action under the equal protection clause of our state constitution. [This court has held that the analysis that applies to equal protection claims under the Illinois equal protection clause is the same analysis as that which applies to the federal215 equal protection clause. With that in mind, the first question is whether education is a fundamental right under the Illinois Constitution. “This court has stated that fundamental rights are ‘only those which’ lie at the heart of the relationship between the individual and a republican form of nationally integrated government.” While it is true that education relates to and enhances various forms of citizenship, fundamental rights analysis is concerned with laws that restrain rather than enhance the exercise of rights. Moreover, it is significant that the framers of our constitutional clause refrained from describing the delivery of high-quality education as a goal rather than a right. For these reasons, we find that education is not a fundamental right in Illinois and, thus, apply rational basis review to educational inequalities. Like the Court in San Antonio v. Rodriguez, we cannot substitute our judgment for that of the legislature. While the current system of financing schools may be unwise, we cannot say it is irrational.]

NOTES AND QUESTIONS

1. What educational rights and responsibilities, if any, does the Illinois Constitution create? Is there a difference between education as a goal and education as a fundamental right?

2. What are plaintiffs’ three primary theories of how the state’s financing system violates the state constitution?

3. Is there a plain meaning of “efficient” that ought to guide the court in Illinois, or is the phrase too ambiguous? What is the court’s rationale as to why the constitutional language regarding an efficient and high-quality education is not implicated by the inequalities and inadequacies among school districts? Does the fact that the legislative framers sought to resolve problems with school boundaries through the efficiency requirement mean that efficiency does not apply to other issues as well? If efficiency does not require equality, what does it require?

4. Is it plausible to read the constitutional language mandating the provision of “high-quality” education as creating no substantive obligation that the courts can enforce? Even if high quality cannot be precisely defined, would it require, at least, a minimally adequate education, which might be more susceptible to interpretation?

5. Is there any way to reconcile Edgar with other courts that have answered these questions differently? The court in Edgar says that other courts were legislating under the guise of constrained interpretation. Who is correct?

6. The court in Edgar distinguishes between (1) rights that would constrain government action that interferes with individuals and (2) rights that place affirmative obligations on government. The court reasons that fundamental rights fall in the former category and nonfundamental rights in the latter. Is this, in fact, the line between fundamental and nonfundamental rights, or does something else distinguish them? Do some fundamental rights place an affirmative obligation on the state? Even if education is not a fundamental right in Illinois, should that automatically lead to the conclusion that rational basis216 applies, or does the explicit constitutional reference to education imply some level of protection beyond rational basis?

7. The court reasons that educational judgments and the enforcement of them are best left to voters and the political process. Does the court make a valid point? What if the political process is incapable of rational and fair outcomes? When courts recognize school finance claims, their remedial orders are not self-executing but are dependent on the willingness of legislatures to act and their voters to support them. Moreover, in those states where judges are elected, voters are free to unelect those supreme court justices with whom they disagree. On more than one occasion, a state supreme court has found a school finance violation only to later reverse itself after the voters altered the composition of the court. Compare Opinion of the Justices, 624 So. 2d 107, 107-108 (Ala. 1993) (recognizing a constitutional right), with Ex parte James, 836 So. 2d 815 (Ala. 2002) (dismissing plaintiffs’ claims as nonjusticiable); compare DeRolph v. Ohio, 677 N.E.2d 733 (Ohio 1997), with State v. Lewis, 786 N.E.2d 60 (Ohio 2003). Does this counsel against judicial intervention, or is there reason to believe that judicial intervention may still be a necessary step in the overall political process?

8. The negative decision in Edgar has not deterred advocates from continuing to bring multiple finance cases against the state. The courts, however, have continued to reject these claims. See, e.g., Carr v. Koch, Dock. No. 113414 (Ill. 2012).

PROBLEM

In 1865, the state of North Virginia revised its constitution to provide that “adequate provision shall be made by law for a uniform system of free public schools.” In 1868, that education clause was revised to state: “It is the paramount duty of the State to make ample provision for the education of all the children residing within its borders, without distinction or preference. The Legislature shall provide a uniform system of Common schools. Instruction in them shall be free.” In 1878, the clause was again revised and the word “paramount” removed.

In 1989, plaintiffs filed suit under the education clause challenging the inequitable and inadequate educational opportunities in their schools. The supreme court of North Virginia held that “there are no judicially manageable standards available to determine adequacy and, while uniform can be understood to mean a lack of substantial variation, assessing which variations are relevant would require the court to make educational judgments that would encroach on the legislature’s expertise and authority.”

After losing the case, education advocates used the initiative and referendum process to amend the constitution. Voters approved an amendment to the state constitution in 1998. The education clause now states: “The education of children is a fundamental value of the people of our state. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high-quality system of free public217 schools that allows students to obtain a high-quality education. To assure children receive a high-quality education, the legislature shall make adequate provisions.”

Plaintiffs filed a new lawsuit. The key issues in the case are (1) whether the education clause confers an enforceable right on students; (2) whether the judiciary still lacks manageable standards; (3) whether separation of powers limit the court’s authority to adjudicate the case; (4) whether precedent and findings in other states bear any relevance; and (5) how to define “high-quality education,” especially whether it is different from a basic or an adequate education.

Assume you are a member of the state supreme court. Outline your response to all of these issues. If you would recognize a cause of action, define the meaning of the clause, paying close attention to how broadly and precisely you define it.

6. State Legislative Process Problems

The state legislative process and response to a judicial opinion are crucial factors in the final outcome in school finance cases. Regardless of what a court holds, the delivery of a constitutional education depends on the state acquiescing to the court’s order. The provision of a constitutional education requires the state to pass legislation. A court can enjoin or hold in contempt various state actors, but a court cannot craft, nor force a legislature to craft, legislation, much less force a majority of the legislature to vote in favor of such legislation. In this respect, securing an educational remedy is as much a political process as it is a judicial one. A court can articulate legal standards and demand compliance with them, but legislators must find the political will to act. As a result, school finance litigation is often just the first step in a much broader effort to reform education funding and quality.

This is not to say that courts are irrelevant to the political process or the broader conversation about education. Litigation can stir the public’s consciousness, and a court order can provide a legislature with the political cover to enact legislation that might otherwise be politically impossible. For example, prior to school finance litigation, the state of New Jersey did not have an income tax and was staunchly opposed to it, but following negative decisions in the Robinson v. Cahill litigation, the legislature and governor were able to garner the support to enact an income tax. Sanford Levinson, Courts as Participants in “Dialogue”: A View from American States, 59 U. Kan. L. Rev. 791, 822 (2011).

Rarely is a single judicial opinion sufficient to generate an effective legislative remedy. More often, school finance litigation leads to several exchanges between the courts and the legislature. See, e.g., Paul L. Tractenberg, The Evolution and Implementation of Educational Rights Under the New Jersey Constitution of 1947, 29 Rutgers L.J. 827, 917, 892-926 (1998). Some state legislatures are repeatedly recalcitrant and refuse to take any serious action to remedy inadequacies, while others make significant changes to school finance and educational standards, but still fall short of constitutional requirements. Thus, even218 these states necessitate return trips to the courts for additional tweaking. Either way, moving from an educational system riddled with inequities or inadequacies to one that meets constitutional standards tends to occur over a period of years or decades. This long process can resemble a tension-filled dance between unwilling or unmotivated partners, in which the courts are reluctant to demand that their legislatures take big steps because doing so would risk the legislature refusing to dance altogether. Other courts might be more deliberate, but are cognizant that they will have to drag the legislature through each step of the dance. A few courts, however, after growing impatient with legislatures, have made firm demands and indicated they would shut the schools down entirely or fine the state enormous amounts of money if the state did not act immediately. Horne v. Flores, 557 U.S. 433, 441-442 (2009) (discussing lower court’s action to fine state); Robinson v. Cahill, 358 A.2d 457 (N.J. 1976) (enjoining operation of schools).

The Great Recession only exacerbated and further highlighted these tensions. From 2008 to 2012, nearly every state in the country imposed budget cuts on education. Noelle M. Ellerson, Am. Ass’n of Sch. Admins, A Cliff Hanger: How America’s Public Schools Continue to Feel the Impact of the Economic Downturn 8 (2010). Cuts of more than $1,000 per-pupil in a single year were routine. Some states experienced massive cuts in multiple years. In North Carolina and Florida, for instance, per-pupil funding fell from over $10,000 to the $7,000 range in just a few years. Bruce D. Baker et al., Is School Funding Fair? A National Report Card 8 (2015). These funding cuts affected a wide array of educational services, but the most significant were regarding teachers, who suffered lay-offs, pay cuts, and new high-stakes accountability systems.

What started as a financial crisis eventually began to look like a convenient rationale to defund public education and disregard constitutional duties. At the same time that states were making cuts to traditional public education, they were enacting huge increases for charter schools and voucher programs. Florida, for instance, was spending $87 million a year on vouchers when the recession began. By 2014, it was spending $344 million. Fla. Dep’t Educ., Florida Tax Credit Scholarship Program Fact Sheet (Nov. 2015). Funding for charters, likewise, grew significantly during the recession at the state and federal level. As a result, between 2007 and 2012, the number of charter schools in operation grew from 4,388 to more than 6,000—a nearly 40 percent increase. Nat’l Ctr. for Educ. Statistics, Digest of Education Statistics, https://nces.ed.gov/programs/digest/d14/tables/dt14_216.20.asp. The number of students enrolled in charters grew even more, nearly doubling to 2.26 million. Id.

The recession may have necessitated some cuts and efficiencies in public education, but as each year passes, a significant change in states’ commitment to education becomes clearer. By 2012, state tax revenues rebounded to pre-recession levels. Bruce D. Baker et al., Is School Funding Fair?: A National Report Card 12–13 t.2 (3d ed. 2014). Yet, as of 2015, thirty-one states were still funding education below pre-recession levels. Michael Leachman et al., Ctr. of Budget and Policy Priorities, Most States Have Cut School Funding, and Some Continue Cutting 1 (Dec. 10, 2015).

The two supreme courts brave enough to call their state to account for these cuts have been all but ignored. John Eligon, Caveat in Courts Budget Adds Fuel to219 Kansas Feud, N.Y. Times, June 7, 2015, at A23; Kirk Johnson, Washington State Faces $100,000-a-Day Fine Until Schools Plan Is Reached, N.Y. Times, Aug. 14, 2015, at A14. Even more troubling, other supreme courts have tolerated these cuts, sometimes with highly questionable reasoning. See, e.g., Dwyer v. State, 357 P.3d 185 (Co. 2015); Davis v. State, 804 N.W.2d 618 (S.D. 2011); Bonner v. Daniels, 907 N.E.2d 516, 522 (Ind. 2009). Both trends raise the question of whether school finance litigation has entered a new unfavorable era.

Recessions and crises aside, keen observers of school finance litigation have also noted that the judicial and political battles can involve considerations, illegitimate or not, that reach well beyond issues of educational quality. James Ryan, for instance, has emphasized the role race appears to play in how the public and legislatures respond to judicial orders in school finance litigation. Ryan hypothesizes that states may be more resistant to litigation brought on behalf of minority communities. James E. Ryan, The Influence of Race in School Finance Reform, 98 Mich. L. Rev. 432 (1999). Analogously (though less perniciously), rural, urban, and suburban divisions within a state can play important roles when a remedy would accrue to the benefit of one particular constituency over another. The politics of regional differences, for instance, were quite significant in New York, where the state funding formula had worked to the distinct disadvantage of New York City.

7. Remedies

Once a court recognizes a cause of action to enforce an educational clause, separation of powers concerns still persist over the implementation of a remedy. As the final arbiters of their state constitutions, courts are generally comfortable with their authority and power to decide whether a particular educational scheme comports with the constitution. But they are less comfortable with ordering specific education policy changes because, as discussed above, state constitutions generally vest the responsibility for providing education in the legislature. The more active courts are in shaping and directing education reforms, the more separation of powers concerns surface because the courts’ remedies will directly affect the legislatures’ expenditures on schools and indirectly affect expenditures on everything else. As a result, courts vary greatly in how they pursue a remedy to a violation of state constitutional law, but they generally choose between taking a deferential or active approach.

After finding a violation, a court can scale back its involvement in the remedial phase of the litigation by reiterating the basics of a constitutionally required education system and outlining in vague and general terms what would be part of a constitutional scheme. The court can then direct the legislature to develop its own remedy, albeit one that is consistent with the court’s decision. See, e.g., DeRolph v. State, 677 N.E.2d 733, 745-747 (Ohio 1997) (after fleshing out the meaning of a thorough and efficient system of common schools and the state’s duty to produce such a system, writing that “we do not instruct the General Assembly as to the specifics of the legislation it should enact”). This approach allows courts to skirt problematic questions regarding what type of220 financing scheme is most effective or what type of educational programs best promote student learning, leaving the most challenging policy decisions to the legislature and governor. See generally William S. Koski & Henry M. Levin, Twenty-Five Years After Rodriguez: What Have We Learned, 102 Tchrs. C. Rec. 480, 496-497 (June 2002). Once courts back away from directly shaping a remedy, the legislatures rely on government agencies and legislative commissions to formulate specific educational policies and practices that will meet the constitutional standard. During this process, educational researchers and school finance experts may also be hired to assist in developing a remedy. Courts, of course, reserve the right to later review whatever remedy the legislature adopts and decide whether it meets constitutional requirements. In this respect, courts still play a role in shaping the remedy, but it is indirect and limited.

Courts that choose to take an active approach in the remedy must resolve issues of educational policy, curriculum, research, and financing. Though the form and cost differs, educational experts and social science are also central to judicial remedies. The court in Campbell County School District v. Wyoming, 181 P.3d 43 (Wyo. 2008), provides an example of an initial deferential approach that subsequently became active after the legislature failed to come up with an appropriate remedy on its own. The court afforded the legislature the first opportunity to craft a remedy, Washakie v. Herschler, 606 P.2d 310 (Wyo. 1980), but in its second opinion, the court focused on expert testimony and reports to fashion its own remedy. 907 P.2d 1238, 1277-1280 (Wyo. 1995). The court reviewed, at length, the research and testimony on educational strategies that relate to class size, school size, services for at-risk children, and the individual attention that students receive. Id. at 1251-1255, 1277-1280. Instead of deferring to the legislature, the court actively engaged in determining which pedagogical strategies and funding practices to implement as a remedy. Several similar examples exist in other states. See, e.g., Ala. Coal. for Equity, Inc. v. Hunt, Civ. A. No. CV-90-883-R, 1993 WL 204083, at *31 (Ala. Cir. Ct. Apr. 1, 1993) (relying on social science in remedy phase); Abbott v. Burke, 710 A.2d 450, 458-459 (N.J. 1998) (offering a prescriptive remedy); Pauley v. Bailey, 324 S.E.2d 128 (W. Va. 1984) (same). In short, the role of experts becomes paramount to remedies regardless of whether a court takes an active approach or the task is left to the legislature.

Courts and legislatures call on experts to develop specific improvements for various components of the education system. For example, courts or legislatures may seek to improve teacher quality, enrich curriculum content, provide schools with up-to-date technology, or enhance pedagogical strategies that are likely to improve student learning and outcomes, particularly for students who face the greatest educational challenges. Based on educational research, courts and legislatures have implemented, encouraged, or ordered numerous specific education strategies to impact student learning and educational quality, including professional development for teachers, student-tutoring programs, preschool services, and smaller class size. See, e.g., Campaign for Fiscal Equity v. State, 655 N.E.2d 661, 666 (N.Y. 1995) (requiring adequately trained teachers); Campaign for Fiscal Equity v. State, 719 N.Y.S.2d 475 (Sup. Ct. 2001) (focusing on providing resources for students with extraordinary needs and221 expanding programs for at-risk students); DeRolph v. State, 677 N.E.2d 733, 745 (Ohio 1997) (directing the state to ensure an “appropriate student-teacher ratio”); Campbell Cnty. Sch. Dist. v. State, 907 P.2d 1238, 1279 (Wyo. 1995) (requiring provisions for at-risk, special problem, and talented students and including smaller classes as a requirement for quality education).

Implementing a specific remedy can be extremely complex, both from a research and legal perspective. First, courts must sort through and resolve potentially conflicting social science evidence. In some instances, the evidence cannot be reconciled. As a result, a court must resort to burdens of proof, policy judgments, and justice considerations to reach a conclusion. Second, courts must connect the social science and other evidence to the established violation. They are not free to order education programs because they are good policy. Rather, courts’ powers are limited to remedying the constitutional violation.

The following cases and materials offer an overview of the social science and other evidence on important education reforms and failures relating to high-need districts, increased funding, prekindergarten, and teacher salaries. But whatever the remedy, the question of whether money matters in educational outcomes is ever present. Thus, this section begins with an article addressing this fundamental question. As you read the cases that follow it, ask what role the courts’ positions on this issue—spoken or unspoken—play in their opinions and whether the cases are about money or something more. Also, assess the extent to which the evidence justifies the particular remedies in the cases and what other remedies and reforms might be important to providing equal and adequate educational opportunities.

a. Money

Michael A. Rebell, Poverty, “Meaningful” Educational Opportunity, and the Necessary Role of the Courts

85 N.C. L. Rev. 1467 (2006)

In the face of the overwhelming reality that the United States has one of the most inequitable education finance systems in the world, the retort of many politicians and pundits is that money really does not matter in education. “Dollar bills don’t educate students,” said President George H.W. Bush in 1991; “[j]ust as more money has not provided a remedy in the past, it will not miraculously do so in the future,” noted the editors of the Wall Street Journal nearly a decade later. Many policymakers believe, therefore, that the schools have ample resources, and the reason that large numbers of students in the inner cities, in many rural areas, and in pockets of underachievement in the suburbs are not performing at satisfactory levels is that either they or their teachers are not sufficiently motivated.

Those with the closest ties to the schools, however, uniformly reject this way of thinking. Certainly, no parent, teacher, or school administrator in any low-wealth school district in the United States—or, for that matter, in any affluent community—genuinely believes that money does not matter in222 education. If money did not matter, wealthy parents would not send their children to private schools with annual tuitions that often exceed $25,000, nor would parents move to wealthy suburbs that spend in excess of $20,000 to educate their students well. As a state court judge in North Carolina bluntly put it after hearing extensive evidence on the subject, “Only a fool would find that money does not matter in education.”

A. The Academic Debate

The “money matters” debate has been carried out in academic circles in recent years through technical discussions of “education production function” analyses. Simply stated, an “education production function” analysis means using a regression analysis to measure the effects of certain “inputs” (such as per pupil funding or teacher salaries or textbooks) on an outcome (such as student achievement, measured in terms of standardized test scores or graduation rates).

Eric Hanushek, an economist at Stanford University’s Hoover Institution, has been the leading academic proponent of the use of production function analyses to defend the proposition that money does not matter. He has argued that “key resources—ones that are the subject of much policy attention—are not consistently or systematically related to improved student performance,” and that increases in school funding to needy schools “could actually be harmful” to students. Hanushek’s position was initially based on production function analyses he had undertaken on 187 regressions based on thirty-eight primary studies of the relationship between teacher/student ratios, teacher education, teacher experience, teacher salary, facilities, and other such inputs, with outcomes mostly in terms of standardized test scores, but that also include some instances of “dropout rates, college continuation, student attitudes, or performance after school.”

Production function analyses generally, and Hanushek’s work in particular, have been widely challenged as being simplistic and misleading because they “do not adequately address serious questions of causation,” and because they do not “adequately account[] for across-district variations” in the costs of educational services (such as teacher salaries), and “in the proportion of students with special needs, who require additional, more costly services.” A related issue is that the production function analyses almost always measure outcomes solely in terms of standardized test scores, which are not complete and accurate measures of meaningful success.

The most extensive rebuttal of Hanushek’s methodology was undertaken in a series of articles by University of Chicago education researchers Rob Greenwald, Larry Hedges, and Richard Laine. They first closely analyzed the thirty-eight specific studies that Hanushek had identified in his work, rejecting the “vote-counting” approach he used to subjectively decide on the aspects of each study that would be counted in the overall analysis; then, using broader and more precise decision rules for conducting a comprehensive meta-analysis of the relevant literature, they concluded that nine of Hanushek’s basic studies were inappropriate and that thirty-one other studies should have been included.223 Analyzing in depth this larger universe, they concluded that “a broad range of school inputs are positively related to student outcomes, and that the magnitude of the effects are sufficiently large to suggest that moderate increases in spending may be associated with significant increases in achievement.” More recent studies concur in the view that educational expenditures are correlated with positive student outcomes,¹ a view that Hanushek himself no longer fully contests.

The argument that money does not matter has also been fueled by an erroneous view that real education spending has tripled in the past few decades. Richard Rothstein and Karen Hawley Miles, in an extensive analysis of this question, have shown that with inflation adjustment, total real education spending per pupil increased by 61% from 1967 to 1991, and that most of this increase went to funded programs and services for students with disabilities, as mandated by new federal laws granting educational rights to these students and their families. The share of expenditures going to general education during this period dropped from 80% to 59%, and the share going to special education increased from 4% to 17%.

B. The Courts’ View

Not surprisingly, the national pattern of gross inequity and inadequacy in school funding has spawned a wave of litigation in the state courts over the past three decades. Since 1973, litigation has been filed in forty-five states, and plaintiffs have prevailed in the majority of the forty-three states where courts have issued decisions.

The cases clearly demonstrate how inequities in funding cause resource deprivations that directly affect students’ educational opportunities. For example, many high schools in California’s low-income and minority communities do not offer the curriculum students must take just to apply to the state’s public universities. Passing an examination in a laboratory science course is required for high school graduation in New York State, but thirty-one New York City high schools have no science lab. In South Carolina, annual teacher turnover rates exceed 20% in eight poor, rural, mostly minority school districts, and in those districts graduation rates fall between 33% and 57%.

In most of these litigations, the question of whether “money matters” has been a central legal issue, and extensive expert testimony on “production functions” and other technical economic and social science issues was a critical aspect of the trial. For example, in the recent Kansas litigation, more than half a dozen experts on both sides of the issue presented detailed testimony on whether money matters. After summarizing its findings regarding the detailed testimony,224 the court concluded that “there is a causal connection between the poor performance of the vulnerable and/or protected categories of Kansas students and the low funding provided their schools. Accordingly, the Court finds as a matter of fact and law that the funding scheme presently in place and as applied in Kansas by its underfunding in general and by its mid and large-school underfunding specifically, clearly and disparately injures vulnerable and/or protected students and thus violates both Article 6 of the Kansas Constitution and the equal protection clauses of both the United States and Kansas Constitutions.”

Overall, the issue of whether money matters in education was directly considered by the state courts in thirty of these cases. In twenty-nine of them, the courts determined that money does indeed matter. In many of the cases, as in Kansas and New York, experts explicitly testified on the specific issue of whether money matters. In others, the courts implicitly considered this issue in their analyses of whether the guarantee in the state constitution’s education article of an “equal” educational opportunity or of an “adequate” education had been met if children in certain districts were deprived of critical educational resources, such as certified teachers, up-to-date textbooks, and decent facilities. In certain of these situations, the court found that although many aspects of the state’s education finance system met constitutional requirements, additional funding was needed to establish or expand particular programs or resources in order to meet constitutional standards. Some cases emphasize the challenging nature of new state and national standards and hold that additional resources are needed so that children can meet them.

Significantly, the courts that have found in favor of the defendants in school finance litigations have not done so because they have found that money does not matter, but for other reasons. When defendants’ positions have been upheld in these cases, it generally has been because of either (1) separation of powers principles that hold that these issues should be determined exclusively by the legislative and executive branches, and not by the courts; or (2) the tradition of local control of education. In a number of these cases the district court had specifically found that money does matter only to be overruled by the state’s high court based on justiciability or procedural grounds. Some courts that have found in favor of the defendants have also noted that the state constitution does require a base level of adequate funding, but the plaintiffs in the case had not alleged or proved that current funding was below that level.

Only one court has clearly held that money does not matter. The Supreme Court of Rhode Island in City of Pawtucket v. Sundlun used a combination of textual interpretation and legislative intent to hold that the education finance system was constitutional. It also relied on a vaguely referenced study that claimed that parental involvement was the most influential aspect of a child’s educational opportunities and that increased spending did not necessarily have an impact on the education a child received. The court did not, however, discuss any specific reasons for rejecting the evidentiary holding of the trial court that there was a clear causal link between insufficient funding and poor student performance.

In the end, all of the elaborate economic production analyses and discussions in the academic literature and in the legal decisions about whether money225 matters really comes down to a basic consensus that, of course, money matters—if it is spent well. Eric Hanushek, historically the chief supporter of the “money doesn’t matter” theory, has himself recently acknowledged that “money spent wisely, logically, and with accountability would be very useful indeed.” There is no doubt that in order to obtain a meaningful educational opportunity, low-income and minority children need qualified teachers, adequate facilities, lower class sizes, more time on task, and sufficient, up-to-date instrumentalities of learning. They also need early childhood education, health services, good nutrition, family support, and other programs and services that can successfully offset the severe effects of poverty. The extent to which legal interventions can ensure adequate funding—and appropriate accountability measures to ensure that the funds are, in fact, used well—will be the subjects of the balance of this Article.

NOTES AND QUESTIONS

1. Does the fact that so many courts have concluded that money matters or have ordered monetary remedies provide an answer to the question of whether money matters? Are courts well suited to referee this debate? Is it their responsibility to do so regardless? While Rebell is writing at a high level of generality to support the argument that all courts and fair-minded social scientists agree that money matters, this high level of generality may oversimplify the controversy. The question may not be whether money matters, but rather what should we do with money to make it matter. As Rebell points out, Eric Hanushek rejects the notion that money per se matters, but Hanushek agrees that “money spent wisely, logically, and with accountability would be very useful indeed.” Thus, asking whether money matters would seem to pose a false dichotomy. The more appropriate question is: What should we spend money on, or how can we spend money more efficiently? As to this question, a wide chasm arises over whether classroom size, prekindergarten education, teacher training, tutoring, length of school day, and other reforms produce positive or sufficiently positive results given the cost.

Likewise, not all courts that order monetary relief are necessarily convinced that the evidence clearly supports the notion that “money matters.” For instance, the New Jersey Supreme Court expressed ambivalence regarding the causal connection between money and student outcomes, writing that the “research, while promising and constructive, [is] inconclusive,” and “money alone has not worked.” Abbott v. Burke, 575 A.2d 359, 377 (N.J. 1990). The court ultimately ordered a monetary remedy not because the evidence was clear but because students’ affirmative right to education placed the burden on the state to disprove the connection: “while we are unable to conclude from this record that the State is clearly wrong,” denying plaintiffs relief would “strip all notions of equal and adequate funding from the constitutional obligation unless we were convinced that the State was clearly right.” Id. “[E]ven if not a cure, money will help, and these students are constitutionally entitled to that help. If the claim is that additional funding will not226 enable the poorer districts to offer a thorough and efficient education, the constitutional answer is that they are entitled to pass or fail with at least the same amount of money as their competitors.” Id. at 375. Which is more powerful, this court’s reasoning or consensus among social scientists that money matters?

2. Does it matter how much money matters? In other words, would it matter if huge increases in money produce only minor increases in student achievement? Part of the problem of assessing whether or how much money matters is that schools have a different cost basis that depends on any number of factors, including geographic location and the percentage of low-income students, special education students, and English Language Learners (ELLs) they enroll. We can rarely compare “apples to apples.” The largest funding variations tend to exist between “apples and oranges” rather than apples and apples. Moreover, no one would seriously argue that the additional expenditure of $10, $20, or $30 per student would improve educational outcomes. Yet it is hard to deny that an additional $10,000 per student would. The problem is identifying the minimal amount of money that would affect outcomes and what, if any, benefit would be derived from each additional dollar spent above that amount. In short, the effect of money does not always operate on a linear trajectory. Thus, the issue devolves back to the questions in the previous note: What is the money being spent on?

3. Money, of course, does buy particular resources, such as books, facilities, teacher salaries, and smaller classrooms. Should the inquiry regarding money simply stop at this point under the assumption that, regardless of how well we can measure the impact of these resources on achievement tests, these are core aspects of learning that necessarily impact education? Some courts have opted toward this approach. See, e.g., Serrano v. Priest, 487 P.2d 1241, 1253 n.16 (Cal. 1971). On the other hand, would it make sense to ensure access to certain resources without concern for their connection to “school quality” or student achievement?

4. One new research project has reached far more definitive conclusions than any before it. Examining more than three decades of data, C. Kirabo Jackson, Rucker C. Johnson, and Claudia Persico found that a 20 percent increase in per-pupil funding, if maintained over time, results in low-income students completing almost a full additional year’s worth of education. C. Kirabo Jackson et al., The Effects of School Spending on Educational and Economic Outcomes: Evidence from School Finance Reforms, 131 Q. J. Econ. 157 (2016). That additional learning eliminates two-thirds of the gap in outcomes between low- and middle-income students. Id. They also found proportionally positive outcomes based on just 10 percent increases in funding across time. Id.

[They] link the spending and reform data to detailed, nationally-representative data on children born between 1955 and 1985 and followed through 2011 (the Panel Study of Income Dynamics) to study the effect of the reform-induced changes in school spending on long-run adult outcomes. These birth cohorts straddle the period in which most of the major school finance reform litigation accelerated, and thus the cohorts were differentially exposed, depending on place and year of birth. [They] use the timing of the passage of court-mandated reforms as an exogenous shifter of school spending across cohorts within the227 same district. Event-study and instrumental variable models reveal that a 20 percent increase in per-pupil spending each year for all 12 years of public school for children from poor families leads to about 0.9 more completed years of education, 25 percent higher earnings, and a 20 percentage-point reduction in the annual incidence of adult poverty; we find no effects for children from non-poor families. The magnitudes of these effects are sufficiently large to eliminate between two-thirds and all of the gaps in these adult outcomes between those raised in poor families and those raised in non-poor families. [They] present several pieces of evidence to support a causal interpretation of the estimates.

Id.; see also C. Kirabo Jackson et al., Boosting Educational Attainment and Adult Earnings, 15 Educ. Next (Fall 2015). Smaller-scale studies of individual states have reached similar conclusions. At least one smaller-scale study of individual states has reached similar conclusions. Michael A. Rebell & Bruce D. Baker, Assessing “Success” in School Finance Litigations, Educ. Week (July 8, 2009).

b. Calculating the Cost of Educational Quality

Campaign for Fiscal Equity v. State

861 N.E.2d 50 (N.Y. 2006)

More than a decade ago, we held that the Education Article of the New York State Constitution requires the State “to offer all children the opportunity of a sound basic education” [and subsequently found that], [w]hether measured by “inputs” or by “outputs,” [children in New York City were not receiving a sound basic education]. Finally, we concluded that plaintiffs had established the causation element of their claim by showing that increased funding can provide better teachers, facilities and instrumentalities of learning, and that such improved inputs in turn yield better student performance.

Accordingly we directed the State to ensure, by means of “[r]eforms to the current system of financing school funding and managing schools…that every school in New York City would have the resources necessary for providing the opportunity for a sound basic education.” Noting that “the political process allocates to City schools a share of state aid that does not bear a perceptible relation to the needs of City students,” we instructed the State to ascertain the actual cost of providing a sound basic education in New York City, rather than the state as a whole. We also held that “the new scheme should ensure a system of accountability to measure whether the reforms actually provide the opportunity for a sound basic education.”

Within a matter of weeks, Governor Pataki issued an executive order creating the New York State Commission on Education Reform, charged with recommending, to the Executive and the Legislature, education financing and other reforms that would ensure that all children in New York State have an opportunity to obtain a sound basic education. The Commission, chaired by Frank G. Zarb, published its final report on March 29, 2004.

The Zarb Commission retained Standard and Poor’s (S & P) School Evaluation Services to calculate the additional spending required to provide a sound228 basic education directing S & P to use a “Successful Schools” model that studies the expenditures of school districts with a proven track record of high student performance. The method had been used by the New York State Board of Regents in its Proposal on State Aid to School Districts for 2004-05.

Reasoning that not all successful schools operate in a manner that is economical, the Zarb Commission instructed S & P to apply a cost-effectiveness filter: once successful school districts were identified, they were to be ranked according to expenditures and those in the lower-spending half were to be used to create an average.

Drawing on an extensive review of pertinent research literature, S & P applied three weightings to the resulting base expenditures, in order to take into account the greater spending required for students with special needs. The coefficients by which the base expenditures were multiplied were 2.1 for students with disabilities, 1.35 for economically disadvantaged students, and 1.2 for students with limited English proficiency. S & P cautioned that it was not in a position to recommend explicitly the set of weightings it applied.

Adjustments were also made to account for the local purchasing power of the dollar, using two, alternative cost indices[: one based on differences in labor market costs and the other based on] the attractiveness of employment within a particular district, one of the key determinants of the cost of providing education.

S & P thus calculated “sound basic education” spending estimates for each school district, using the two regional cost indices and the criteria for identifying successful school districts. The spending estimates did not include capital, debt or transportation costs. Finally, these figures were compared with amounts actually spent in 2002-2003, in order to identify “spending gaps.”

Applying the [cost index based on locality attractiveness], the estimated spending gaps for New York City ranged from $1.93 billion to $2.53 billion and the statewide spending gaps from $2.45 billion to $3.39 billion. (New York City’s spending gap thus comprised 74% to 79% of the State’s total gap.) When the [labor cost index] was applied, the estimated spending gaps were larger, ranging from $4.05 billion to $4.69 billion for New York City, and $4.61 billion to $5.57 billion statewide. Governor Pataki convened the Legislature in extraordinary session on July 20, 2004, and proposed a program bill to the Senate, incorporating the Zarb Commission’s methodology. The Senate passed an amended version of the bill. Ultimately, the legislation was not enacted. In both versions of the bill, Governor Pataki and the Senate endorsed the approach that generated a minimum figure of $1.93 billion as the estimated spending gap in operating expenses for New York City. In his State Education Reform Plan, submitted in the course of this litigation, the Governor concluded that “the S & P analysis as adopted by the Zarb Commission and by State defendants determined that $2.5 billion in additional revenues statewide (equating to $1.9 billion in New York City) was a valid determination of the cost of providing a sound basic education in New York City.”

In his program bill memorandum, Governor Pataki made it clear that he intended New York City schools to receive additional funding that exceeded the minimum cost of a sound basic education. Proposals for a Dedicated State Fund229 for Sound Basic Education and for a New York City local state aid match would, when coupled with projected increases in state school aid and federal aid, generate “approximately $4.7 billion in additional support over the next five years.” As noted, the proposed legislation was not enacted. The Legislature, however, passed a bill on August 10, 2004, providing $300 million in additional education aid to New York City.

[Pursuant to the deadline set in our prior decision, the] Supreme Court set out to determine whether the measures we had declared necessary had been carried out. It appointed a blue-ribbon panel of referees “to hear and report with recommendations” on whether the steps taken by the State brought compliance with CFE II. The Referees conducted numerous hearings [and received extensive evidence from various experts and governmental bodies. Ultimately,] they accepted the “successful school districts” methodology of the Zarb Commission, [but] the Referees rejected its cost-effectiveness filter, used a 1.5 weighting for economically disadvantaged students in place of the S & P coefficient of 1.35, and insisted on the use of an updated [locality cost index]. They concluded that the spending gap in New York City was $5.63 billion in 2004-2005 dollars, rejecting the State’s contention that additional funding in the amount of $1.93 billion would ensure the opportunity for a sound basic education in New York City’s public schools.

The Referees [also] recommend[ed] that the State be required to ensure that $9.179 billion in 2004-2005 dollars would be available as funding for capital improvements over the following five years[, and] that costing-out studies be carried out every four years, “until it becomes clear that reforms to the State’s education finance formulas have rendered such studies no longer necessary to assure all New York City students the opportunity for a sound basic education.”

[The] Supreme Court confirmed the Judicial Referees’ Report and Recommendations. The Appellate Division vacated that confirmation[, reasoning that so] “…long as the State’s choices remained within the range of professionally accepted practices in determining the costs of a sound basic education, [the] Supreme Court should have left the conclusions for legislative and gubernatorial consideration and determination.”

Citing Governor Pataki’s proposal to increase funding of the New York City School District by $4.7 billion (over a period of five years), the Appellate Division directed the Governor and Legislature to appropriate at least $4.7 billion in additional operating funds (phased in over four years). The Appellate Division also directed the Governor and Legislature to “implement a capital improvement plan that expends $9.179 billion over the next five years or otherwise satisfies the city schools’ constitutionally recognized capital needs.”

Plaintiffs CFE et al. appeal pursuant to CPLR 5601(a) and (b)(1). The state defendants cross-appeal under CPLR 5601(b)(1).

The role of the courts is not, as [the] Supreme Court assumed, to determine the best way to calculate the cost of a sound basic education in New York City230 schools, but to determine whether the State’s proposed calculation of that cost is rational. [The] Supreme Court should not have endorsed an examination in which the cost of a sound basic education in New York was calculated anew, when the state budget plan had already reasonably calculated that cost. In this respect, we agree with the Appellate Division. It was error to confirm the Referees’ Report.

We differ from the Appellate Division, however, in two respects. First, we observe that the state plan found that the cost of providing a sound basic education in New York City was $1.93 billion in additional annual operating funds, and that Governor Pataki’s proposal to provide $4.7 billion in additional funding amounted to a policy choice to exceed the constitutional minimum. Second, in light of recently enacted legislation designed to allow the State to remedy inadequacies in New York City schools facilities, we reject as unnecessary the Appellate Division’s directive regarding capital improvement.

Therefore, we modify the order of the Appellate Division, in two ways. We declare that the constitutionally required funding for the New York City School District includes, as demonstrated by this record, additional operating funds in the amount of $1.93 billion, adjusted with reference to the latest version of the [cost index] and inflation since 2004. We vacate the requirement that the Governor and the Legislature implement a capital improvement plan that either expends $9.179 billion over the following five years “or otherwise satisfies the city schools’ constitutionally recognized capital needs.” As modified, we affirm.

III

When we remitted in CFE II, we did so in order that Supreme Court would determine, when our deadline had passed, whether the State had implemented the reforms we required—legislation that would ensure that New York City schools have the resources necessary for providing the opportunity for a sound basic education and that would ensure accountability. CFE II called for the State to present evidence of its reforms, both predating CFE II and following CFE II, and for [the] Supreme Court to determine whether they satisfied our directives.

In light of our language in CFE II and our jurisprudence as a whole concerning deference to the Legislature in matters of policymaking, it was incumbent upon [the] Supreme Court to begin by making a finding as to whether the State’s estimate of the cost of providing a sound basic education in New York City was a reasonable estimate. Then the court should have proceeded to determine whether the state plan, as of July 30, 2004, incorporated that sound basic education expenditure in its proposed budget and would, if enacted, ensure a system of accountability. Supreme Court should not have provided a panel of referees with a mandate to make recommendations as between compliance proposals—the State’s, the plaintiffs’, the City’s, the Regents’. The State, not [the] Supreme Court, was ordered to ascertain the cost of a sound basic education in New York City.

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We do not believe that Governor Pataki’s proposed State Education Reform Plan was unreasonable. In particular, we do not find irrational the Governor’s approach to identifying successful schools, the S & P weightings for students with special needs and the cost-effectiveness filter. As a result, we do not find unreasonable the assertion that “$2.5 billion in additional revenues statewide (equating to $1.9 billion in New York City) was a valid determination of the cost of providing a sound basic education in New York City.” There is substantial record support for that statement.

First, the use of the cost-effectiveness filter is rationally defensible. The variation in spending between New York school districts is very large. As S & P explained, averaging the expenditures of all successful schools would “mask a considerable range of per-pupil spending among the individual districts. If the concept of ‘adequacy’ means spending no less, but not necessarily more, than is necessary to produce high achievement levels, then there is reasonable cause to adjust the base expenditure by a measure of cost effectiveness. This can be done by ranking the successful districts under each scenario by their base expenditure, and computing the average of the lowest 50% (in terms of spending), which is the same approach used by the New York Board of Regents in its recent study of educational costs. An analysis of the average achievement levels of the lower-spending half of districts shows that they closely resemble the average achievement levels of the upper-spending half of districts.”

The essential premise of the cost-effectiveness filter is that the higher-spending half of the successful districts is spending more than the constitutional minimum—either because those districts spend less efficiently than some others or because they have chosen to do more for their students than the Constitution requires. The State, in adopting S & P’s approach, implicitly concluded that New York City could attain minimal constitutional standards while spending less than this higher-spending group of successful districts. The premise, and the conclusion, are no doubt debatable, but we cannot say they are irrational, and they are therefore entitled to deference from the courts.

The S & P weightings for children with special needs also have record support [and were based on] an extensive review of relevant research.

The S & P calculations—applying a 2.1 weighting for students with disabilities, 1.35 for economically disadvantaged students, and 1.2 for students with limited English proficiency, and reaching the conclusion that the spending gap for the New York City School District is $1.93 billion—were reasonable. Although we recognize that legitimate arguments can be made for raising the coefficient for economically disadvantaged students to 1.5, we do not believe that the figure of 1.35 lacks grounding in prudent reason.

Accordingly, we declare that the constitutionally required funding for the New York City School District includes additional operating funds in the amount of $1.93 billion, adjusted with reference to the latest version of the GCEI and inflation since 2004.

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NOTES AND QUESTIONS

1. What are the practical and empirical problems that this court reveals in identifying how much money is required to provide a constitutional education? What methods did the legislature, courts, and others use to resolve these issues and determine the cost of a constitutional education?

2. Is the question of the amount of resources necessary to deliver an adequate education a factual question, a pedagogical question, a judgment question, or a legal question? In other words, who is best suited to decide? It would appear on some level to be a factual question. If so, would the court serve as the final arbiter of how much should be spent on education? What role does the court end up playing in addressing this issue?

3. The court indicates that the state’s estimates of the necessary resources were reasonable. Do plaintiffs have the right to return to court if these estimates later prove to be insufficient, or is it enough that the state acted in good faith or within reason? Is the court indicating that only the state has the authority to enact education policy and budgets, but courts have the right to evaluate, after the fact, whether those budgets meet constitutional standards? The result of this approach can be for the state to repeatedly fail in the first instance and courts to repeatedly repudiate them after the fact. In the meantime, children are perpetually denied a constitutionally adequate education. Does this problem suggest that either the previously described active or deferential judicial approach to remedies is the better option?

4. Do courts have the institutional capacity and expertise to oversee the details of education finance systems over a period of years? Is there any way to ensure that states do not slip back into earlier patterns of inadequacy or inequity once the spotlight is no longer shining on them? Advocates charge that New York has done a very poor job in continuing the necessary commitments to education, which has resulted in additional litigation. Michael A. Rebell, Safeguarding the Right to a Sound Basic Education in Times of Fiscal Constraint, 75 Alb. L. Rev. 1855, 1896-1905 (2012) (discussing recent litigation in New York).

5. The methods described by the court do not mention a weighting for concentrated poverty. Is this a fatal flaw, or do other measures indirectly account for it? Do these methods overlook any other important factors?

c. Prekindergarten Education

Prekindergarten programs have steadily increased over the past two decades. In 2001, 38 states offered a preschool program of some kind, and 14.8 percent of four-year-olds were enrolled. W. Steven Barnett et al., The State of Preschool: 2003 State Preschool Yearbook 16 (2003). By 2010, that number had risen to 28 percent. W. Steven Barnett et al., 2011 State Preschool Yearbook 6 (2011). Nearly all of these programs were voluntarily implemented by states and localities based on extensive social science evidence demonstrating that low-income students are not as prepared for kindergarten as their peers, but that high-quality prekindergarten can significantly close the gap. See generally James E. Ryan, 233 A Constitutional Right to Preschool?, 94 Cal. L. Rev. 49, 56-57 (2006). The benefits to low-income students can continue to accrue throughout their subsequent school years, improving academic achievement, grade promotion, graduation rates, and employment prospects. Id. The positive student outcomes can also produce a net gain to society by lowering social service costs associated with dropouts and crime. Id.

Implicit in the above statistics, however, is the fact that far too many disadvantaged students do not have access to preschool, and some who do attend preschool attend ones that are not of sufficient quality. Recognizing the important role prekindergarten can play in whether a student succeeds in school, school finance advocates in several states have sought to include prekindergarten within their remedies. See, e.g., Lake View Sch. Dist. No. 25 v. Huckabee, 91 S.W.3d 472, 500-502 (Ark. 2002); Hancock v. Comm’r of Educ., 822 N.E.2d 1134, 1156-1157 (Mass. 2005); Abbott v. Burke, 693 A.2d 417, 436 (N.J. 1997); Hoke Cnty. Bd. of Educ. v. State, 599 S.E.2d 365, 393-394 (N.C. 2004); Order at 2, Abbeville Cnty. Sch. Dist. v. State, No. 93-CP-31-0169 (S.C. 3d Jud. Cir. Ct. Com. Pl. Dec. 29, 2005). Thus far, only two state high courts have upheld lower court orders to provide prekindergarten education, Abbott, 693 A.2d at 436, and Hoke Cnty. Bd. of Educ. v. State, 731 S.E.2d 691 (N.C. App. 2012), although a leading scholar reasons that this number should increase. Ryan, supra. The following excerpt offers the basic rationale from one of the states that has implemented preschool through school finance litigation.

Abbott v. Burke

710 A.2d 450 (N.J. 1998)

This Court has consistently recognized and emphasized that early childhood education is essential for children in the [special needs districts (SNDs). We find that full-day prekindergarten, rather than just half-day kindergarten, is the most cost effective means for lowering drop-out rates and is an essential precursor to delivering a constitutionally mandated thorough and efficient education to at-risk students in elementary grades. Thus, this court orders the immediate implementation of prekindergarten in the plaintiff districts.]

There is no fundamental disagreement over the importance of pre-school education. The Commissioner proposed half-day pre-school for four-year olds, and the plaintiffs and Dr. Odden recommended full-day pre-school for both three- and four-year olds. As the Commissioner’s research itself demonstrates: “Well-planned, high quality half-day preschool programs…help close the gap between the home and school environments and the educational expectations that lead to academic success.”

Empirical evidence strongly supports the essentiality of pre-school education for children in impoverished urban school districts. That evidence demonstrates that the earlier education begins, the greater the likelihood that students will develop language skills and the discipline necessary to succeed in school. A review of two major studies on pre-school cited by the parties, the High/Scope Perry Preschool study and the Abecedarian study, also reveals that there is a234 strong correlation between the intensity and duration of pre-school and later educational progress and achievement. The Commissioner’s expert on childhood education, Dr. Slavin, noted that “the programs that have shown the greatest success are ones that provide more intensive services” and “start with three-year-olds rather than four-year-olds.” Common experience confirms this empirical evidence that pre-school attendance is linked to success in school.

A 1996 report by the Carnegie Task Force on Learning in the Primary Grades lends further support to that conclusion. Carnegie Corp. of New York, Years of Promise: A Comprehensive Learning Strategy for America’s Children (1996). The Report recommends that high-quality learning opportunities for children ages three to five be made universally available: “During the preschool years, children make the developmental leaps that form the basis of later achievement. To get all children ready for school and for an education that meets high standards of achievement, the task force recommends that the nation make a commitment to expanded high-quality public and private early care and education programs for children ages three to five, supported by national, state, and local mechanisms that are coordinated to assure adequate financing.”

Part of the basis of that recommendation is that one-third of children entering elementary school lack basic school-readiness skills. One reason for this deficit is that poor areas suffer from a scarcity of quality, publicly-funded early care and early education for three- to five-year olds.

The evidence also shows that one of the most important functions of early childhood education is language development. At the hearing, evidence was produced showing that children in low income families suffer greatly in language development. Key elements of language development begin when a child is three and four; therefore, opportunities for those children to learn are lost if early childhood education does not begin at those ages.

The Legislature itself has recognized the necessity of early childhood education for three- and four-year olds in the poorest school districts provides that for districts in which the concentration of low income pupils is greater than 20% but less than 40%, early childhood aid “shall be distributed” for “the purpose of providing full day kindergarten and pre-school classes and other early childhood programs and services.” The statute does not specify whether the pre-school aid should be used for three-year olds or four-year olds or both. For districts in which the concentration of low income pupils is equal to or greater than 40%, the statute directs that additional funds be used “for the purpose of expanding instructional services previously specified [i.e., preschool classes and other early childhood services] to 3 year olds.” For districts, then, with a 40% concentration of poor students, it is mandatory that ECPA funds be expended for the pre-school education of three-year olds. The statute next provides that should extra funds remain, they may be used, “in addition to the instructional services previously specified” [i.e., the just mentioned preschool for three-year-olds and the aforementioned “early childhood programs”], for “the purpose of” providing “transition and social services to primary grade students.” The statute thus contemplates three tiers of funding: (1) undifferentiated funds to be expended on pre-school in Abbott districts with 20% poor (ECPA-1 districts); (2) additional monies that must be spent on pre-school education for235 three-year olds in districts with 40% poor (ECPA-2 districts); and (3) extra funds to be used for services for elementary school students in districts with funds remaining after the mandates of (1) and (2) have been met.

In the vast majority of [plaintiff] districts, more than 40% of the population is low income. For these ECPA-2 districts, then, pre-school for three-year olds is legislatively mandated. As for the remaining handful of districts where between 20 and 39% of their respective citizens are poor, we note the following. The record is undisputed and, indeed, uncontrovertible that the conditions that work to deprive children of their constitutional entitlement to a thorough and efficient education are pervasive not only in the ECPA-2 districts, but in the ECPA-1 districts as well. The Court concludes that the level of need in the ECPA-1 districts for pre-school programs for three-year olds is comparable to that exhibited by ECPA-2 districts. Given the documented and undisputed similarity of conditions that deleteriously impact the ability of children throughout the [plaintiff] districts to receive a sound education, it would be inconsistent with the legislative mandate underlying CEIFA for the Commissioner not to use his power to direct ECPA-1 districts to restructure their curricula in order to provide pre-school education for three-year olds and to reallocate and apply ECPA funds to the cost of providing pre-school education for three-year olds.

This Court is convinced that pre-school for three- and four-year olds will have a significant and substantial positive impact on academic achievement in both early and later school years. As the experts described, the long-term benefits amply justify this investment. Also, the evidence strongly supports the conclusion that, in the poor urban school districts, the earlier children start pre-school, the better prepared they are to face the challenges of kindergarten and first grade. It is this year-to-year improvement that is a critical condition for the attainment of a thorough and efficient education once a child enters regular public school.

Stated conversely, because the absence of such early educational intervention deleteriously undermines educational performance once the child enters public school, the provision of pre-school education also has strong constitutional underpinning. In light of our construction of N.J.S.A. 18A:7F-16, however, and the powers of the Commissioner delineated in N.J.S.A. 18A:7F-6b, we need not reach the constitutional issue. The provision in CEIFA for education of three-year-olds is a clear indication that the Legislature understood and endorsed the strong empirical link between early education and later educational achievement.

NOTES AND QUESTIONS

1. What rationale justifies mandating that the state offer prekindergarten education? Does this court go too far in its mandate?

2. Are you convinced of the efficacy of prekindergarten education? How does it compare to other remedies? If the evidence is so compelling, why have so few state courts compelled it?

3. Does prekindergarten raise any political or social issues, including removing at-risk students from their homes at an earlier age and for longer periods of time? Should the program be voluntary or mandatory for parents?

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4. The trial court in North Carolina’s school finance litigation ordered the state to implement prekindergarten education, but on appeal, the supreme court reversed the order as beyond the court’s authority, reasoning that the state must have the first opportunity to craft a remedy. Hoke Cnty. Bd. of Educ. v. State, 599 S.E.2d 365 (N.C. 2004). The state then implemented some prekindergarten services of its own volition, but scaled them back during the recession that began in 2008. Reviewing the basis for withdrawing services from some at-risk students, the trial court indicated the state was now obligated to provide prekindergarten services to at-risk students. Hoke Cnty. Bd. of Educ. v. North Carolina, 95-CVS-1158, 2000 WL 1639686 (Sept. 2, 2011). This time North Carolina’s appellate court affirmed the trial court. More recently, a trial court in South Carolina similarly ordered prekindergarten for at-risk children. But the South Carolina Supreme Court implicitly vacated the order when it directed the state and plaintiffs to “identify the problems facing students in the Plaintiff Districts” and “solve those problems through cooperatively designing a strategy to address critical concerns and cure the constitutional deficiency evident in this case.” Abbeville v. State, 767 S.E.2d 157, 180 (2014).

d. Teacher Salaries

Teacher salaries receive relatively little treatment in most school finance opinions. Tennessee is the most significant exception. In the first challenge to the state’s financing system, the supreme court held that students have a constitutional right to “substantially equal educational opportunities.” Tenn. Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 151 (Tenn. 1993). The court then found that the state’s financing system caused impermissible disparities throughout the state. Id. In a second opinion, the court reviewed the legislative plan to remedy the disparities. The court found that, while certain aspects of the plan did improve equity, the failure to equalize teacher salaries amounted to a fatal flaw. The court wrote:

Funding based on determined costs is mandated for each component of the basic education plan except teachers’ salaries [in the state’s revised financing scheme]. The allocation for teachers’ salaries to each local system is the product of the amount of the system’s average teacher salary, based on the State salary schedule plus the mandated local supplement, multiplied by the number of [Basic Education Program (BEP)] teacher positions in that local system. Local systems are allowed to use classroom funds for any of the classroom components and they are allowed to use system support funds for any of the system support components. However, they are prohibited from using BEP funds for the purpose of increasing teachers’ salaries. Since the adoption of the BEP, teachers have received the same increases in salaries as other State employees, except the total amount paid teachers has been distributed according to the BEP formula. However, there is no provision in the BEP for increasing teachers’ salaries or equalizing teachers’ salaries.

The State’s explanation, and justification, for this treatment of the funding of teachers’ salary increases is that historically all funds made available to local systems have been applied to teachers’ salaries, resulting in other needs being neglected. The State takes the position in this case that increasing and equalizing teachers’ salaries is not a component of a basic education, that it “does not affect student performance.” The argument is dramatically weakened by the inclusion of this item in earlier BEP proposals.

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The decision by the architects of the BEP to prohibit the use of classroom funds and system support funds to increase teachers’ salaries does not require that funds for teachers’ salary increases be excluded from the plan. Obviously, it can be a separate category of funding, along with classroom components and support system components.

The omission of a requirement for equalizing teachers’ salaries is a significant defect in the BEP. The rationale supporting the inclusion of the other important factors constituting the plan is equally applicable to the inclusion of teachers’ salaries. Teachers, obviously, are the most important component of any education plan or system, and compensation is, at least, a significant factor determining a teacher’s place of employment. The costs of teachers’ compensation and benefits is the major item in every education budget. The failure to provide for the equalization of teachers’ salaries according to the BEP formula, puts the entire plan at risk functionally and, therefore, legally.

Tenn. Small Sch. Sys. v. McWherter, 894 S.W.2d at 734, 738 (Tenn. 1995).

After this second opinion, the state implemented a “salary equity plan,” but the court also struck it down as deficient in a third opinion. The court found that the state’s revised statutory scheme “does not equalize teachers’ salaries according to the BEP formula and contains no mechanism for cost determination or annual cost review of teachers’ salaries.” Tenn. Small Sch. Sys. v. McWherter, 91 S.W.3d 232 (Tenn. 2002). The court wrote:

We can think of no rational basis…for structuring a basic education program where all of its components, including salaries for custodians, secretaries, nurses, librarians, social workers, principals and their assistants, assessment personnel, coordinators, supervisors, psychologists, and superintendents, are cost-driven, except for the largest and most important component of all, the cost of providing teachers. It seems to us, as we said in Small Schools II, that the rationale for cost determination and annual review of the BEP components applies with equal if not greater force to teachers’ salaries, for it is undeniable that teachers are the most important component of any effective education plan, and that their salaries, a major item in every education budget, are a significant factor in determining where teachers choose to work. We recognized this fact seven years ago in Small Schools II, and we strongly reiterate it again today.…

The State’s contention that salaries have been equalized because all public school teachers have a minimum salary based on training and experience factors is unconvincing. Tennessee Code Annotated §49-3-306 has been the law since 1977. Assuming the State has been using the salary schedule mandated by that statute all along, particularly prior to Small Schools II, the State’s reliance on it does little to help its cause. In fact,…we observed in Small Schools I that making adjustments based on training and experience benefitted wealthier school districts because more funds were channeled to districts where better trained and experienced teachers worked. Most importantly, Tennessee Code Annotated §49-3-306 does nothing to address the problem of having an education funding system consisting entirely of cost-driven components except for the most important component of providing teachers.…

Id. at 204-243.

NOTES AND QUESTIONS

1. What reasons might have dissuaded more courts from closely examining teacher salaries? What are the practical problems with calculating and achieving funding equity for teacher salaries?

2. Is equalizing teacher salaries sufficient to equalize access to teachers? If not, what other steps might states be obligated to take in regard to teachers?238 In the context of adequacy, is equalizing teacher salaries enough? What would be the appropriate benchmark for salaries: interstate competitiveness, encouragement to enter the profession, encouragement to stay in the profession, incentivizing teachers to teach at needy schools? These and other issues will be explored later in Chapter 12, which focuses exclusively on teachers.

3. The research on teacher quality is persuasive in showing that teacher quality is a strong indicator of students’ academic success. William L. Sanders & Sandra P. Horn, Research Findings from the Tennessee Value-Added Assessment System (TVAAS) Database: Implications for Educational Evaluation and Research, 12 J. Personnel Eval. Educ. 247, 247 (1998). For instance, students who have consistently had low-quality teachers are less likely to reach proficiency in their grade level than those students who consistently have high-quality teachers. See Linda Darling-Hammond, Ctr. for the Study of Teaching & Pol’y, U. of Wash., Teacher Quality and Student Achievement: A Review of State Policy Evidence 6 (1999); William L. Sanders & June C. Rivers, U. of Tenn. Value-Added Res. & Assessment Ctr., Cumulative and Residual Effects of Teachers on Future Student Academic Achievement 6 (1996). This is especially true in high-poverty areas where low academic student achievement and low teacher quality exist in tandem. Assoc. of Tex. Prof. Educators & Ed Fuller, Study on the Distribution of Teacher Quality in Texas Schools 37 (Fall 2010), available at http:/www.atpe.org/advocacy/issues/10_TeacherQuality_for_web.pdf.

4. Inequality in access to quality teachers for poor and minority students is pervasive. Predominantly poor minority schools, in particular, tend to have less-qualified teachers. Charles Clotfelter et al., Who Teaches Whom? Race and the Distribution of Novice Teachers, 24 Econ. Educ. Rev. 377 (2005); Catherine E. Freeman et al., Racial Segregation in Georgia Public Schools, 1994-2001, in School Resegregation: Must the South Turn Back? 157-159 (John Charles Boger & Gary Orfield eds., 2005); Steven G. Rivkin et al., Teachers, Schools, and Academic Achievement, 73 Econometrica 417, 458 (2005); U.S. Dep’t of Educ., Monitoring School Quality: An Indicators Report (2000). These schools find it difficult to attract high-quality teachers in significant numbers. But even when they do secure quality teachers, predominantly minority schools find it difficult to retain them. Eric A. Hanushek et al., Why Public Schools Lose Teachers, 39 J. Hum. Resources 326, 337 (2004). The best teachers often leave high-poverty, high-minority schools as soon as they obtain experience. Id. Predominantly minority schools are then forced to replace the departing teachers with inexperienced and less-qualified teachers. Id. Consequently, predominantly minority schools experience exceptionally high teacher turnover. Educ. Trust, Their Fair Share, How Texas-Sized Gaps in Teacher Quality Shortchange Low-Income and Minority Students 6 (2008). The lack of continuity in their teaching staff also negatively impacts a school’s budget and instructional quality.

Unfortunately, money alone cannot easily fix this problem because the problem is not simply one of money. Jane L. David, Teacher Recruitment Incentives, 65 Poverty & Learning 84 (2008). The racial and socioeconomic characteristics of students have a strong impact on many teachers’ decision of where to teach. Susanna Loeb et al., How Teaching Conditions Predict Teacher Turnover in California Schools, 80 Peabody J. Educ. 44 (2005); Wendy Parker, Desegregating Teachers, 86 239 Wash. U. L. Rev. 1, 34-36 (2008); Benjamin Scafidi et al., Race, Poverty, and Teacher Mobility (Andrew Young School of Policy Studies Research Paper Series, Working Paper, Aug. 2005). Those teachers with options, which are high-quality teachers, generally will not voluntarily choose to teach in high-minority, high-poverty schools. Of course, money is not entirely irrelevant, but absent huge salary increases, teachers tend to prefer schools with fewer numbers of minorities. Alliance for Excellent Educ., Improving the Distribution of Teachers in Low-Performing High Schools 7 (2008) (indicating that several states already have incentive pay for low-performing schools, but pay increases alone are insufficient to attract teachers); Hanushek, supra at 350-351 (finding that a 10 percent salary increase would be necessary for each increase of 10 percent in minority student enrollment to induce white females to teach in the school). As the materials in this chapter suggest, very few predominantly minority schools and school systems have the resources to offer huge salary increases.

e. School Efficiency and Consolidation

One response to school finance pressures has been to consolidate schools, with the assumption being that consolidating small school districts and/or schools would allow them to share administrative costs and presumably use the new excess funds to make improvements in other aspects of the education process. School closures and consolidations were particularly prevalent during the recent recession. Some districts were bankrupt or on the verge of bankruptcy and sought refuge from adjoining districts, and underenrolled school buildings were seen as an economic drain even in financially secure districts. See generally Kristi L. Bowman, Before School Districts Go Broke: A Proposal for Federal Reform, 79 U. Cin. L. Rev. 895 (2011). Consolidation, however, does not come without costs. Most obvious are additional transportation costs. Less obvious are potential losses of community support, community values, and close relationships between students, teachers, and staff. The following excerpt from one of West Virginia’s school finance opinions explores both these effects. The narrative following the case further develops the indirect effects.

Pendleton Citizens for Community Schools v. Marockie

507 S.E.2d 673 (W. Va. 1998)

This case arises out of the closing of a small (130 students in grades 7-12) high school program in Circleville, Pendleton County, West Virginia. In 1995, the Pendleton County Board of Education decided to require that Pendleton County students in grades 7-12 who would have attended school in Circleville would instead attend a new, county-wide consolidated high school being built in Franklin, about 17 miles from Circleville. Franklin is the county seat, and has an existing high school, with about 500 students in grades 7-12. The new consolidated high school would have about 650 students.

240

The appellees made two general contentions in the circuit court. First, appellees contended that the [West Virginia School Building Authority (“SBA”)], which provides money to counties for school construction, ordinarily awards such money only to fund construction at schools that meet minimum “economies of scale” size requirements—for high schools, 200 per grade level.

This requirement may be waived only when a school will take all of a county’s students at a certain grade level, as is the case for the new consolidated high school in Pendleton County. Without such a “single county high school waiver,” the new high school would have to have 1,200 students—6 grades times 200 students per grade—to achieve “economies of scale.” There are not 1,200 high school students in all of Pendleton County.

The appellees contend that this SBA funding practice effectively forces county school boards in sparsely populated rural counties to consolidate high schools, regardless of and to the overall educational detriment of the children who have been attending smaller schools. Appellees also contend that school boards, particularly in less prosperous, sparsely populated, rural counties, cannot themselves ordinarily refurbish or replace smaller, non-consolidated high schools like Circleville, without funding assistance from the SBA.

Thus, say appellees, the SBA’s use of “economies of scale” in evaluating requests for funding effectively forces the closure of smaller community high schools that are otherwise efficient and effective in the ways that matter most to their students and communities.

III

Rather than taking up the major task of dissecting [the various] disputes about the circuit court’s findings, we take the simpler approach of accepting the circuit court’s findings, for argument’s sake only-insofar as the court found: (1) that SBA and State Board funding policies for school construction and salaries promote and substantially contribute to the closing of smaller high school programs like Circleville High, and drive the establishment of larger, consolidated high schools; and (2) that such high school consolidations, including the Pendleton County high school consolidation at issue in the instant case, have more of an adverse effect on the children whose former school is being closed than on the other children closer to the community where the consolidated school is located—these effects being lengthy travel, difficulties in full participation, etc.—in short, all of the negative effects listed in the circuit court’s factual findings that are quoted supra.

Given these assumed facts, [the primary legal question is whether] the alleged SBA/State Board “bias” in favor of consolidation [is] unconstitutional? We held in Pauley v. Kelly, 255 S.E.2d 859 (1979), that: [1.] The mandatory requirements of “a thorough and efficient system of free schools” found in Article XII, Section 1 of the West Virginia Constitution, make education a fundamental, constitutional right in this State[; and 2.] Because education is a fundamental, constitutional right in this State, under our Equal Protection Clause any discriminatory classification found in the State’s educational financing system cannot stand unless the State can demonstrate some compelling State interest to justify the unequal classification.

241

Assuming (arguendo) that children who have or would have attended smaller, more local community high schools like Circleville do not do as well in or are not as well served by larger consolidated high schools, and that this disparity is associated with a child’s residence or wealth, the question then is whether such a disparity implicates and violates our state constitutional guarantee of the right of education? This Court has not shied from finding that distinctions and disparities based on wealth or residence may lead to finding a violation of the constitutional right to education. In the instant case, appellees base their argument not on disparities in buildings, books, curricula, or teacher salaries, but on the allegedly inherently harmful effects of taking children on long daily bus rides to a school where they and their families are less able to be involved in a wide range of educational and extra-curricular learning activities. Appellees say that modern facilities and equipment do not and cannot make up for the loss of the more fundamental, human-scale educational virtues of the smaller school that is closed as part of consolidation. In sum, appellees asserted and the circuit court found that the closing of Circleville High would on balance be educationally injurious to the appellees, in a disparate and discriminatory fashion associated with their residence and wealth.

Did the circuit court properly find such discriminatory and disparate injuries to the appellees? The appellants assert and the appellees do not disagree that no jurisdiction has found that school consolidation and/or a state policy of incentives to consolidate result in disparities and adverse effects that implicate a constitutional right to educational services and opportunities.

If we assume arguendo that the appellees sufficiently proved that the SBA/State Board policies generally and in the instant case create or contribute to adverse educational effects and disparities, based on wealth and residence, that are of constitutional significance—then the issue that immediately follows is whether the challenged actions that create or contribute to such alleged effects and disparities are—under a strict scrutiny review—necessary, reasonable, least restrictive and narrowly tailored to advance a compelling state interest.

As to what state interests are served by a policy of promoting or favoring “economies of scale”—that is, high schools of a certain size (or as close thereto as may be achieved in a county)—the appellants advanced several reasons for such a policy, including: (1) the need to spend limited state educational funds economically; (2) the need to see that all students have access to enhanced curricular offerings; (3) the need have modern, safe physical facilities; and (4) the need to balance competing local and regional needs, interests and resources to achieve greater statewide equality and adequacy of educational opportunity. No one disputes that these are compelling state interests.

In the instant case, the circuit court concluded that none of these (or any other) compelling state interests were served in a necessary, feasible, least restrictive and narrowly tailored fashion by the appellants’ allegedly pro-consolidation bias in the distribution of state funds for school building and personnel salaries. The circuit court concluded generally that the state’s interests could and should be advanced in a less restrictive and more narrowly tailored fashion.

Based on these conclusions, the circuit court ordered that the County Board’s decision to close Circleville High be set aside. The circuit court also242 ordered the SBA and State Board to modify their policies governing salaries and economies of scale to eliminate any pro-consolidation bias.

However, the circuit court’s order did not with any degree of specificity identify or evaluate the nature or costs (financial and otherwise) of statewide policies by the SBA and State Board that would not give preference to “economies of scale”—or more particularly, of policies that would if applied fund the continued existence of Circleville High.

In the instant case, there is no reasonably detailed identification, evaluation or comparison by the circuit court of alternatives to the policies complained of by the appellees. It is not otherwise clear from the record that there are less discriminatory, feasible, more narrowly tailored and less restrictive alternatives to those policies—that are themselves not educationally injurious and discriminatory in other ways of arguably equal importance.

Therefore, we will not sustain the circuit court’s conclusion that the SBA/State Board approach to funding school construction and salaries—and the allegedly resulting closing of Circleville High—is not a narrowly tailored, least restrictive method necessary to advance a compelling state interest.

NOTES AND QUESTIONS

1. What, if any, are the benefits of school consolidation? What, if any, are the negative effects? What effects are of constitutional significance: standardized test achievement; graduation rates; staffing costs, quality, and feasibility; student and parental satisfaction or comfort level in schools; student participation in extracurricular activities and civic life? If consolidation does not significantly affect student achievement, do students have a legitimate constitutional objection to consolidation?

2. Assuming educational budgets are extremely limited in some states and communities, is consolidation justified out of necessity, even if it does cause some harm, so long as the benefits outweigh the costs? The South Carolina Supreme Court recently found that many small school districts in the state had “administrative costs which are disproportionate to the number of students served by th[e] district, and which divert precious funding and resources from the classroom.” It suggested these costs might be a factor in the inadequate education in these districts and that the state should consider consolidation. Abbeville v. State, 767 S.E.2d 157, 172-173 (2014).

3. On what basis does the West Virginia Supreme Court reject plaintiffs’ challenge to school consolidation?

4. Greg Malhoit and Derek Black note that the number of public schools has declined by 69 percent since 1940 even though the student population has grown by 70 percent. The result has been a huge growth in the size of schools. This growth is premised on cost savings and improved educational opportunities. But in places like West Virginia, the assumptions have not necessarily proven true. “After consolidation, the new larger schools have usually been unable to show any significant savings and, at times, have proven to be more expensive243 because of increases in discipline, drop-outs, and absenteeism. When measured by the cost per graduate, small schools can be cheaper because they have been shown to graduate a higher percentage of their students.…[R]esearch has shown that economies of scale sometimes associated with larger schools are offset once the school’s student population increases to a certain level.” The Power of Small Schools: Achieving Equal Educational Opportunity Through Academic Success and Democratic Citizenship, 82 Neb. L. Rev. 50, 87-88 (2003). Malhoit and Black also emphasize that “[b]y scaling down the size of a school, the school becomes more capable of shaping the types of individualized programs that are necessary for each student to gain an adequate education.…[I]n smaller schools, ‘the learning needs of the students, not the organizational needs of the school, drive school operations.’ Consolidation policies greatly miss the reality and import of this point.” Id. at 90.

5. The strongest case for small schools may be their ability to generate higher student participation in educational and extracurricular activities. This participatory experience tends to carry over into adulthood. If state educational litigation is not just about test scores but also about producing good citizens, should courts be more attuned to democracy issues and force remedies that ensure more than just positive achievement outcomes? Or is the democratic aspect of education simply aspirational?

6. Some large schools have tried to create environments analogous to those of small schools by creating schools-within-a-school, whereby students interact and move within only a smaller community in the school. A.M. Burke, Making a Big School Smaller: The School-Within-a-School Arrangement for Middle Level Schools (1987); G. Robinson-Lewis, Summative Evaluation of the School-Within-a-School (SWAS) Program: 1988-1989, 1989-1990, 1990-1991 (1991); J.W. Way, Evaluation of the School Within a School (1985). While some of these programs have proven effective, they are not as consistently effective as small schools themselves.

PROBLEM

Identify a single state (other than one already discussed in this book) on which to focus and familiarize yourself with the applicable decisions, statutes, and constitutional provisions. Once you understand the law, research the prevailing relevant facts in that state. In particular, identify a particular school district or school in that state to examine.

Based on the facts and data you can acquire from databases and electronic sources, analyze whether your chosen school district meets the state’s legal requirements. The background cases you have covered thus far, as well as the particulars of the law in your state, will reveal what particular facts you should investigate. Although the data that is relevant and available will vary by state, a wealth of data and information about schools is now available through the websites of departments of education, local school boards, individual schools, newspapers, and other civil rights and education websites.

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Is your chosen school or district providing a constitutionally or statutorily sufficient education? Your response should (1) articulate the controlling and relevant law of the state; (2) demonstrate an understanding of what facts are necessary to demonstrate compliance with or a violation of that law; and (3) develop the actual facts that address compliance or a violation. What, if any, remedies would you propose?

C. CONTINUING INEQUALITIES

Ross Wiener & Eli Pristoop, How States Shortchange the Districts That Need the Most Help

The Education Trust, Funding Gaps (2006)

In 26 of the 49 states studied, the highest poverty school districts receive fewer resources than the lowest poverty districts. [A]cross the country, state and local funds provide $825 per student less in the highest poverty districts than in the most affluent districts. Four states—Illinois, New Hampshire, New York, and Pennsylvania—shortchange their highest poverty districts by more than $1,000 per student per year. These states, and others that allow funding gaps to persist, are compounding the disadvantages that low-income students face outside of school and undercutting public education’s ability to act as an engine of social mobility.

In 28 states, high-minority districts receive less state and local money for each child than low-minority districts. Across the country, $908 less per student is spent on students in the districts educating the most students of color, as compared to the districts educating the fewest students of color.

[Assessments of equality in terms of] absolute dollar numbers actually understate the inequity suffered by high-poverty districts. To educate children growing up in poverty to common, meaningful standards costs more. Children from low-income families need more instructional time and especially well trained teachers. To provide another way of looking at state funding gaps, we also calculate the gaps with a 40 percent adjustment for educating students growing up in poverty. We use this 40 percent adjustment because it is included in the federal Title I formula to determine whether state funding policies are fair to low-income students. Title I funding to states that do not meet this standard is reduced. Studies that have attempted to quantify the additional costs of educating students growing up in poverty have often produced higher adjustments. Maryland, for example, determined that it would require virtually double the foundation funding to educate low-income students up to its state standards, and phased in a funding formula to meet that goal beginning in 2002. Others, such as Professor Liu, use a 60 percent adjustment.

Applying the 40 percent adjustment, the number of states that underfund school districts serving large numbers of poor children grows to 34, and the national gap goes from $825 to $1,307. Underneath this national gap lie huge differences among the states. Six states have per-student funding gaps that245 exceed $1,000 between high- and low-poverty districts; once the 40 percent adjustment is applied, Michigan and Montana join the four states that have funding gaps in excess of $1,000 (Illinois, New Hampshire, New York, and Pennsylvania).

A similar analysis based on districts serving students of color finds the same pattern: After the 40 percent adjustment for low-income students is made, school districts serving the largest concentrations of students of color receive $1,213 less per child than school districts serving the fewest children of color every year. (No adjustment is made on the basis of the percent minority enrollment.) Thirty states have funding gaps between their highest and lowest minority districts, and twelve have funding gaps that exceed $1,000 per child (Colorado, Illinois, Kansas, Montana, Nebraska, New Hampshire, New York, North Dakota, South Dakota, Texas, Wisconsin, and Wyoming).

Some states demonstrate that equitably funding education is possible. Kentucky and Massachusetts, for example, have targeted more money to high-poverty districts and coupled the monetary resources with meaningful accountability and technical assistance—and real progress has been accomplished. But equitable funding is not a panacea. Washington, for example, does not distribute its money in a particularly unfair way in comparison to other states, but that does not make up for the fact that it simply spends less on education than other states with similar wealth. There are, of course, examples where increased education funding has not translated into commensurate improvements in teaching and learning. We have to confront those issues seriously, but ignoring or condoning funding gaps only makes it harder to tackle the substantive problems.

While some meaningful gains in education funding occurred in several states prior to 2008, the Great Recession unraveled most of those gains and worsened inequalities elsewhere. During the recession, nearly every state imposed massive budget cuts to education. Equally problematic, those cuts remained years after the recession ended. According to the Center on Budget and Policy Priorities, in 2014, states were “providing less per-pupil funding for kindergarten through 12th grade than they did seven years [earlier]—often far less.” Michael Leachman & Chris Mai, Most States Still Funding Schools Less Than Before the Recession, Ctr. on Budget & Pol’y Priorities (Oct. 16, 2014). Thirty states were spending less per pupil than they were before the recession and, in 14 states, the decrease was substantial. Id. Oklahoma, for instance, was spending almost 25 percent less in 2014 than in 2008. Id.

Most states have done something to address the problem, but their efforts have been far too modest. By 2012, all but two states had total gross domestic products that met or exceeded 2008 levels, but only 18 states increased their effort to fund education. Bruce D. Baker et al., Is School Funding Fair? A National Report Card 20 (2015). Instead, they placed their priorities elsewhere. The ten states making the biggest cuts in education following the recession continued to rank in the bottom half of the nation in terms of tax effort exerted to fund education. Id. at 19. The Education Law Center’s school funding fairness report246 ranked the funding effort in five of those ten states as an “F.” Id. Some states even continue to decrease their effort as tax revenues improve. Id. at 21, fig. 19. North Carolina, for instance, cut its education budget by 15 percent over the course of and following the recession and, during the same time, gave massive new tax cuts to the state’s highest income earners. See, e.g., Patrick Gleason, North Carolina Lawmakers Build upon Historic Tax Reform, Forbes (June 10, 2015); Michael Leachman & Michael Mazerov, State Personal Income Tax Cuts: Still a Poor Strategy for Economic Growth, Ctr. on Budget & Pol’y Priorities (May 14, 2015). The state maintained those education cuts in subsequent years notwithstanding the fact that by 2015 the state brought in nearly half a billion dollars in surplus revenues. N.C. Office of the Governor, Governor McCrory Praises $445 Million Revenue Surplus (July 28, 2015), https://governor.nc.gov/press-release/governor-mccrory-praises-445-million-revenue-surplus.

In some states, these cuts were seemingly directed at the most needy districts. In Nevada, for instance, the gap between districts serving predominantly poor students and districts serving predominantly middle-income students grew dramatically during the recession. By 2012, the state was funding districts serving predominantly poor students at an astonishingly low rate compared to other districts—just 48 percent of the funding that the most advantaged districts received. Baker, supra, at 9. Likewise, in Georgia, the state cut $112 million from the education fund specifically designed to help close the gap between wealthier and poorer districts. Nicholas Johnson et al., Ctr. on Budget & Pol’y Priorities, An Update on State Budget Cuts: Governors Proposing New Round of Cuts for 2011: At Least 45 States Have Already Imposed Cuts That Hurt Vulnerable Residents 11 (2010); Memorandum from Jeffery C. Welch et al., Consortium for Adequate Sch. Funding in Ga, to Donna Hinton (Jan. 29, 2009), https://eboard.eboardsolutions.com/Meetings/Attachment.aspx?S=4172&AID=170553. Cuts like these in needy districts like Philadelphia, Pennsylvania, caused shortfalls so steep that districts began eliminating basic services and closing schools. Mareesa Nicosia, The Tenuous Fate of Pennsylvania’s Public Schools, The Atlantic, Oct. 13, 2015. The situation got so bad in Philadelphia that national civil rights leaders descended on the state in protest, concluding that “Pennsylvania has become a national model of dysfunction in education.” Joy Resmovits, Tom Corbett Pressured by Civil Rights Groups on Philadelphia School Funding, Huffington Post, Oct. 11, 2013; Derek Black, The Perfect Storm Undermining Philadelphia’s Schools, Educ. L. Prof. Blog (Oct. 15, 2013), http://lawprofessors.typepad.com/education_law/2013/10/the-perfect-storm-undermining-philadelphias-schools.html.

NOTES AND QUESTIONS

1. What do these continuing inequalities suggest about school finance litigation: that more must be filed, that it is ineffective, or that courts need to adopt better remedial strategies? Given what you have learned thus far, what should states, localities, and the federal government do to address these problems? The authors of this report point out that “states vary dramatically in the extent to which local taxes fund schools—from a low of 13 percent in New Mexico to a247 high of 60 percent in Connecticut.” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, eds. 2015) offers a variety of answers to these questions, critiquing past school finance litigation and proposing new strategies.

2. What, if anything, does an average gap of $825 per pupil between high-poverty and wealthy districts mean in real-world terms for students? Do we need more definitive answers to the questions of whether and how much money matters, or is this gap large enough to be problematic on its face? In an average elementary school of 400 students, a per-pupil gap of $825 amounts to a total gap of $330,000 per year. In many localities, that amount of money could pay the salary of 5 to 7 additional teachers. If the school previously had a teacher-to-student ratio of 1 to 25, those teachers would reduce that number to 1 to 17. Or that same amount of money could be used to drastically increase salaries and put the school in the position to upgrade the qualifications of its teachers, buy a new fleet of school buses, extend the school year by two months and enrich the quality of the curriculum throughout the year, provide after school tutoring to all at-risk students, and/or renovate a portion of the school building each year.

3. Is it fair to calculate gaps based on providing low-income students an additional 40 percent, or should the state be expected only to provide equal dollar amounts?

4. During and immediately following the recession, courts appeared reluctant to enforce constitutional rights, potentially fearing that legislatures would disregard their orders. In fact, in the two states in which courts did forcefully uphold constitutional rights and duties in education, the legislatures were particularly recalcitrant. See, e.g., David Sciarra & Wade Henderson, What’s the Matter with Kansas’ Schools, N.Y. Times, Jan. 8, 2014, at A; Betsy Hammond, Washington Schools Chief Won’t Run for Re-election, Blasts Others for Low School Funding, The Oregonian, Oct. 22, 2015. In Kansas, the legislature went so far as to threaten the judiciary’s budget and the process by which judges are appointed. See, e.g., Edward M. Eveld, Threat by Kansas Lawmakers to Halt Court Funding Draws a Lawsuit from Four State Judges, Kansas City Star, Sept. 9, 2015.

How to measure funding gaps and their importance has been a point of disagreement, even among school funding advocates. In addition to Education Trust, the National Center for Education Statistics (NCES) and Education Week regularly publish reports on funding inequality. A report by the Education Law Center, a leader in school finance litigation, points out limitations in the methodology used in these other studies. The Education Law Center argues that:

The NCES per-pupil revenue measure masks differences in school funding within states, differences that can be as large as—or larger than—differences across states. This measure also does not account for differences in education costs within and across states and regions, and across labor markets, nor does it capture variations in student need and the variations in the resources needed to ensure that students with differing needs are able to meet common achievement and outcome standards, both within states and across states and regions. The NCES measure ignores the increased needs and costs of educating low-income students, especially those in concentrated poverty.

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While the Ed Week and Education Trust measures attempt to recognize differences in student need, particularly with regard to low-income students, they assign different and imprecise values—or “weights”—to account for those differences. In fact, one assigns a value nearly twice as large as the other, and neither is based on research on what it would actually take to close achievement gaps between poor and non-poor children.

Neither Ed Week nor Education Trust accounts for the large differences in state and local revenues that exist in very small, sparse rural districts versus larger urban and suburban districts.

The imprecise methods used by Ed Week and Education Trust lead to strikingly different and inconsistent rankings between the two measures.

Bruce D. Baker et al., Is School Funding Fair? A National Report Card 5-6 (2010).

The Education Law Center articulates its own solution to these flaws and starts with the question “What is fair school funding?” It defines it “as a state finance system that ensures equal educational opportunity by providing a sufficient level of funding distributed to districts within the state to account for additional needs generated by student poverty.” Id. Its methodology for measuring fairness is built on six principles: (1) “Varying levels of funding are required to provide equal educational opportunities to children with different needs”; (2) “The costs of education vary based on geographic location and other factors, particularly regional differences in teacher salaries, school district size, population density, and various student characteristics”; (3) “The level of funding should increase relative to the level of concentrated student poverty”; (4) “State finance systems should deliver greater levels of funding to higher-poverty versus lower-poverty settings, while controlling for differences in other cost factors”; (5) “While the distribution of funding to account for student poverty is crucial, the overall level of funding still matters—greatly.…If the overall level of funding generated by the state system is woefully inadequate, it is of little consolation that students in high-poverty districts receive more resources than those in lower-poverty districts”; (6) “The sufficiency of the overall funding level in any given state can be assessed based on comparisons with other states, particularly those in the same region with similar conditions and characteristics.” Id. at 7-8. Based on these principles, the report analyzes and grades state finance systems on four different measures: funding levels in comparison to other states, the extent to which funding within states is distributed to meet student need, the amount of effort states exert relative to their fiscal capacity, and the proportion of students attending public rather than private school.

This more sophisticated analysis produces instructive findings. It identifies a few states that are doing a relatively good job of driving additional funding to the highest-need districts. But it shows most states are not. In fact, some do the opposite by driving more funds to those districts that need it the least. The report, however, also shows that about three-quarters of the states are underfunding education as a general matter, regardless of whether they are distributing the funds they have fairly, which corresponds with relatively low effort in raising education funds even when states have the capacity to do so. Tennessee provides an example of this ironic complexity. Tennessee is one of the most progressive states in funding its high-need districts, but its actual per-pupil expenditures ranked last in the nation and its funding effort was nearly the same. Id. at 15, 18, 27.

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What none of these studies do is attempt to measure actual educational quality or its correlation with money. Of course, that is the key question. As revealed in various sections of this chapter, school finance and quality litigation has regularly relied on student achievement on standardized tests as a rough indicator of school quality or deficiency. Student achievement is far from conclusive as to any legal inquiry of equity or quality, but student achievement provides a relevant data point to examine when comparing and assessing schools.

These data points, regardless of their cause, are troubling in several respects. As measured by the National Assessment of Educational Progress (NAEP) in 2009, only one out of three eighth-grade students is “proficient” in reading. The results are similar in math. The numbers are less shocking when measuring whether students are achieving at a “basic level,” but about a quarter of students still achieve below basic in math and reading. The statistics are even worse for minority students. African American students’ achievement on the national assessment lags 27 scaled points behind whites in reading and 31 points in math. This achievement gap is equivalent to two to three years of learning. Thus, African American eighth graders are earning scores equivalent to sixth-grade white students.

Minority students, however, are not the only ones left behind. Students, regardless of race, are also disadvantaged based on the state in which they happen to live. For instance, no more than one out of four students achieve at or above proficiency in fourth-grade math in Alabama, Mississippi, and the District of Columbia, whereas over half of the students in Kansas, Massachusetts, Minnesota, New Hampshire, and New Jersey achieve at or above proficiency. Various scholars argue that NAEP overstates education shortcomings because the test is too exacting and not precisely tailored to what state curricula dictate that students should learn. Ctr. for Pub. Educ., Score Wars: What to Make of State v. NAEP Tests (Mar. 29, 2006), http://www.centerforpubliceducation.org/Main-Menu/Evaluating-performance/The-proficiency-debate-At-a-glance/Score-wars-What-to-make-of-state-v-NAEP-tests-.html. Regardless, achievement gaps persist on various other measures as well. See, e.g., Derek W. Black, Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373 (2012).

D. SOCIETAL INTERESTS IN SCHOOL FINANCE

Clive R. Belfield & Henry M. Levin, The Education Attainment Gap: Who’s Affected, How Much, and Why It Matters

In The Price We Pay: Economic and Social Consequences of Inadequate Education (Clive R. Belfield & Henry M. Levin eds., 2007)

An excellent education for all of America’s children has benefits not only for the children themselves but also for the taxpayer and society. A copious body of research literature has established that poor education leads to large public250 and social costs in the form of lower income and economic growth, reduced tax revenues, and higher costs of public services such as health care, criminal justice, and public assistance. Therefore we can view efforts to improve educational outcomes for at-risk populations as public investments that may yield benefits considerably in excess of investment costs.

In 1970 the Select Senate Committee on Equal Educational Opportunity commission[ed] a study [to] provide at least an estimate of the benefits to the taxpayer of reducing the magnitude of inadequate education.

[The study] estimated that $237 billion in lifetime income in 1970 dollars (about $1.2 trillion in 2004 dollars) was lost by failing to ensure that all persons attained a minimum of high school completion, including about $71 billion ($350 billion in 2004 dollars) in government revenues. The effects of inadequate education on public assistance and crime and their costs were also reviewed, as well as evidence on the effects of poor education on reduced political participation and intergenerational mobility and higher health costs. Because of data shortcomings, however, these estimates were highly speculative.

The study assumed that educational investments in compensatory resources would have to increase by 50 percent for every year of schooling, elementary through high school, in order to provide the resources that would lead to graduation. The overall cost of providing these additional resources for the dropout cohort that was analyzed was estimated at about $40 billion in 1970 dollars (about $200 billion in 2004 dollars). When this figure was compared with just the benefits of higher tax revenues from increased high school completion, the benefits were almost twice the costs. Under a substantial range of assumptions it appeared that investing in reducing the number of poorly educated people in the population would have public benefits well in excess of the costs.

[A similar study “of Texas ninth graders in 1982-83” estimated that “a dropout prevention program” would save the state $17.5 billion “in public assistance, training and adult education, crime and incarceration, and unemployment insurance and placement and to higher earnings associated with the additional high school graduates,” while the cost of the program was “slightly less than $2 billion, for a benefit to cost ratio of nine to one.” All past research, however,] has serious shortcomings because of the early vintage of the research. Only recently have detailed data that enable the linking of educational levels to participation in crime, health, public assistance, and tax revenues become available.

Inadequate Education Today

[R]oughly three of every ten students in the United States are not graduating from high school on time. There are significant differences in dropout rates by race and by gender. The black male public high school graduation rate is 42 percent, in comparison with 48 percent for Hispanic males and 71 percent for white males. The disparities are smaller for females, but they follow the same pattern: black females graduate at a rate of 56 percent, Hispanic females at 59 percent, and white females at 77 percent. The overall male dropout rate is 23 percent.

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Overall, a significant number of persons entering the labor market lack an adequate education. Although there are about 800,000 noncompleters, we assume that the 709,000 who have succeeded in reaching at least tenth grade might be considered prospects for high school graduation. This subgroup of persons might become graduates if effective educational interventions were implemented.

Increasing the numbers of people graduating from high school will also enable and motivate more of them to attend college. These may be the same new graduates or they may be people who would have graduated in the absence of new interventions but were motivated by the programs to attend college and to raise their employment prospects. Raising educational standards in high school would mean more college education, resulting in additional economic benefits. To capture these effects we can conceive of an “expected high school graduate,” a person who is a new high school graduate and in addition now has some probability of progressing to college and completing a degree.

Approximately 80 out of 100 new high school graduates are expected to terminate their education after high school, and of the remainder, three-quarters are likely to attend but not complete college. Nevertheless, for all groups it is likely that inducing expected dropouts to graduate will yield a further upgrading of education into college. This upgrading effect must also be counted in examining the cost to the nation of inadequate education.

Aggregate Effects of Raising the Number of High School Graduates

Aspirationally, we wish to find ways for all students to graduate from high school and to receive an excellent education. The literature on the causes of dropping out, however, suggests that this will not be accomplished by even the most promising educational interventions. Both statistical studies and surveys of dropouts suggest that the quality or type of education received is not a sole factor. Family problems, frequent residential moves and school mobility, limited cognitive or physical abilities, psychological problems, pregnancies, and financial constraints all exert pressure on students to drop out.

Realistically, we might expect a reduction of the dropout rate by up to 50 percent for persons who currently have a ninth to eleventh grade education—that is, those on the margin of graduation. [E]ach effective intervention typically raises the number of on-time high school graduates by 10 out of 100 students, and school officials are not restricted to applying only one intervention per student. Moreover, we believe other strategies can further reduce dropout rates, although they will draw more heavily upon policies for providing support and resources to families and communities in conjunction with schools.

[R]educing the dropout rate by 50 would mean 354,030 new high school graduates. Most of them would terminate their education after high school, but 50,000 would progress to some college education, and 20,000 would obtain a four-year college degree. Ensuring an adequate education for this number of persons would yield a significant economic gain for taxpayers and society.

The additional tax payments received from high school graduates as opposed to high school dropouts are substantial, and they are even greater for252 people who undertake some postsecondary education as a consequence of high school graduation. Even the completion of one more year of schooling by age 20 yields to the government the present-value equivalent of $50,000.

In addition to paying less in taxes, high school dropouts are costlier to society because of their dependence on publicly subsidized health care. Peter Muennig estimates that each additional high school graduate would save the government the present-value equivalent of $39,000 over his or her lifetime from age 20. [Likewise, d]ropouts are incarcerated at rates twice those of high school graduates, leading to much greater public spending on policing, the court system, and the prison system. Moretti finds that a one-year increase in average schooling reduces murder and assault by almost 30 percent, motor vehicle theft by 20 percent, arson by 13 percent, and burglary and larceny by about 6 percent. Increasing the high school completion rate by just 1 percent for all men ages 20-60 could save the United States more than $1 billion a year in the costs of criminal justice.

[P]oor education [also] raises the probability that a person is on welfare, directly increasing the costs of providing public assistance. For example, single-mother high school graduates are from 24 to 55 percent less likely to be dependent on assistance from the Temporary Assistance for Needy Families program than are high school dropouts.

[T]he best solution would be to invest in educational interventions that ensure that as many students as possible graduate from high school, with an increasing portion of these proceeding to postsecondary education. By focusing resources on students who are receiving inadequate education, it is possible to obtain benefits far in excess of the costs of those investments. Increases in tax revenues and reductions in taxes paid into public health, criminal justice, and public assistance would amount to many billions of dollars a year in excess of the costs of educational programs that could achieve these results. Even these benefits of more and better education as a good investment do not include the gains in political participation or civic engagement that are also causally influenced by education. Effective investments to ensure high school graduation therefore produce high yields from the taxpayer’s perspective.

NOTES AND QUESTIONS

1. With the need for economic efficiency during the recent recession, the notion that improving education would save society money became a particular point of advocacy for some groups. For instance, thousands of police chiefs, sheriffs, district attorneys, other law enforcement leaders, and violence survivors came together to form an organization called Fight Crime: Invest in Kids. The organization released a report in 2013 that advocated for more public investment in prekindergarten education as a way to reduce later criminal justice and social costs.

The cost of the state-federal partnership [to provide prekindergarten to low- and moderate-income children] is $75 billion over 10 years–a smart move when you consider the fact that253 we currently spend $75 billion every year on corrections nationwide to incarcerate over 2 million criminals.

By one estimate, this 10-year investment in preschool will produce over 2 million additional high school graduates. And if we can reduce the number of young people who commit felonies and the number who are incarcerated by 10 percent each—roughly half the reduction achieved by the Chicago Child-Parent Center program—we can reduce the number of individuals who are locked up by 200,000 each year. The resulting savings—$75 billion over the 10-year investment—could pay the federal costs of the preschool program.

These benefits have a tremendous bottom-line economic impact. An independent analysis of over 20 preschool programs demonstrated that quality preschool returned an average “profit” (economic benefits minus costs) to society of $15,000 for every child served, by cutting crime and the cost of incarceration, and reducing other costs such as special education and welfare. The state-federal proposal also offers states and communities resources for voluntary home visiting programs to coach new parents and for improving the quality of child care. One home visiting program, the Nurse-Family Partnership, cut abuse and neglect in half and cut later criminal convictions of participating children by more than half.

Fight Crime: Invest in Kids, I’m the Guy You Pay Later: Sheriffs, Chiefs and Prosecutors Urge America to Cut Crime by Investing Now in High-Quality Education and Care (2013). Even more boldly, Goldman Sachs and Pritzker Group invested their own private money to fund Salt Lake City, Utah’s prekindergarten education. Goldman Sachs’ was explicitly a financial venture. It lent the school district $4.6 million in return for an agreement that the city would repay the loan plus 40 percent of any savings that the district would reap over the next six years of those prekindergarten students’ education from reduced special education and other costs. Derek Black, The Cost Savings of Pre-K: Who Should Reap the Reward?, Education Law Prof Blog, June 17, 2013, http://lawprofessors.typepad.com/education_law/2013/06/is-pre-k-a-good-business-investment.html.

2. If these studies’ and ventures’ findings and conclusion are accurate, why have legislatures failed to make the appropriate investments in education?

3. Are the social costs of poor education relevant to school finance litigation or judicial reasoning? The findings of these studies are directly analogous to the Supreme Court’s reasoning in Plyler v. Doe, in which the Court held that Texas’s denial of education to the children of undocumented immigrants was irrational because it would create a permanent underclass that would exact any number of financial and social costs on the state. 457 U.S. 202, 230 (1982).

4. The Belfield and Levin study is careful to note that some students will drop out of school regardless of how much we spend on education. Thus, increased expenditures may have no effect on that social phenomena. Why is that? What percentage of the dropouts could we reasonably expect to prevent? Interestingly, President Obama proposed mandating that students remain enrolled in school until they are 18 years old, rather than 16. Tamar Lewin, Obama Wades into Issue of Raising Dropout Age, N.Y. Times, Jan. 26, 2012, at A17.

5. Belfield and Levin do not calculate the cost of an adequate education. Is a high school diploma alone, regardless of its indication of educational quality or learning, really going to make a difference in a student’s earning capacity? Would high school graduates who are still destitute of basic skills find gainful employment, or just add to the number of unemployed graduates? Regardless, at254 a minimum, continued progress toward graduation would necessarily avoid the social ills that accompany dropping out of school, such as juvenile delinquency. Moreover, research indicates that dropping out of school leads to juvenile delinquency, which leads to long-term criminal activity that otherwise would not have occurred if students had simply remained in school. See generally Katayoon Majd, Students of the Mass Incarceration Nation, 54 How. L.J. 343 (2011).

E. SCHOOL FINANCE AND RACE

James E. Ryan, Schools, Race, and Money

109 Yale L.J. 249 (1999)

The goal of school finance litigation, generally speaking, is to increase the amount and equalize the distribution of educational resources and, in so doing, to improve the academic opportunities and performance of students disadvantaged by existing finance schemes. Such litigation is not targeted to assist only minority students, but rather is designed to assist all “poor” students. School finance litigation is thus often depicted both as a means of moving beyond race as the salient issue in education reform and as an effective way to achieve educational equity and adequacy for disadvantaged students from all racial and ethnic backgrounds. Concomitantly, from its inception thirty years ago to the present, such litigation has been seen as either a supplement to or a substitute for desegregation litigation.

School finance litigation began in the late 1960s, at a time when civil rights advocates were growing disillusioned with the pace and progress of desegregation. More and more, one [currently] hears calls that desegregation is not the answer, that the NAACP may have erred in pushing for integration rather than for equalization, and that poor, urban, minority schools would succeed if only reform x, y, or z were adopted. Most of these reforms require funding, often funding above and beyond current levels, which naturally increases the importance of school finance schemes. School finance litigation, meanwhile, continues apace. Indeed, while desegregation is entering its twilight phase, school finance litigation shows no signs of abating.

It thus seems an appropriate time to consider school finance litigation and desegregation in tandem and to compare, before we turn our backs completely on desegregation, the relative benefits of school finance reform and desegregation. Surprisingly, such an examination has rarely occurred: Very little scholarly attention has been devoted to the relationship between school finance and desegregation or to the role that race plays in school finance reform. [But] one cannot fully understand the dynamics and limitations of school finance reform without considering the dynamics of race and school desegregation. Indeed, far from moving beyond race, school finance reform has been hamstrung by the obstacles created by poor race relations and the Court’s desegregation jurisprudence. [R]esidential segregation and the limited reach of school255 desegregation have helped to create and maintain schools that are isolated not simply by race but also by socioeconomic status. The effects of racial and socioeconomic isolation cannot be adequately addressed by school finance reform, because students in schools with high concentrations of poverty need more than increased funding to improve their achievement. Increasing expenditures in racially isolated schools, moreover, cannot replicate the social benefits of racially integrated schools. By helping to isolate not simply minority students, but poor minority students, race has played a critical role in creating and maintaining schools that appear to be beyond the reach of school finance reform.

To put the argument simply: Although it is possible that school finance reform could have been a helpful supplement to desegregation, it is a poor substitute. Despite the hopes of early school finance advocates, we should not expect school finance reform to solve the problems created by the failure to desegregate many urban schools. Indeed, not only [has] school finance reform done little to improve academic performance, it may be a costly distraction from the more productive policy of racial and socioeconomic integration.

III. The Creation and Consequences of Ghetto Schools

The schools that have been shaped by race and racial politics and that may be beyond the reach of school finance reform are mostly urban. Roughly two-thirds of black students attend elementary and secondary school in central-city districts. These central-city schools, in turn, are populated primarily by minority students—both African-American and Hispanic. [R]esidential segregation and the Court’s desegregation jurisprudence, which themselves are at least partially the product of poor race relations, have combined to create urban schools that are isolated by race and poverty. Such schools are more expensive to run and, at the same time, suffer from problems that money seems unable to solve. In this way, race has played a pivotal role in creating schools whose problems seem irremediable by school finance reform and increased expenditures.

A. Urban Schools: The Numbers

Four general characteristics set urban schools apart from their suburban counterparts: student composition, student poverty, student performance, and dropout rates. Urban public schools are attended primarily by African-American and Hispanic students. [E]ducational opportunities are shaped by the second factor that sets urban schools apart from their suburban counterparts: Students in urban districts are disproportionately poor. Over half of the students in the largest urban districts were eligible for a free or reduced lunch in 1990-1991. The schools that have the highest minority enrollment also have the highest incidence of student poverty.

The third factor that sets urban schools apart is closely related to the second: Urban school students generally do not perform as well on standardized tests as students in either rural or suburban schools, and black students in particular do not perform as well as white students. More than half of fourth- and eighth-grade students attending urban schools do not even reach the most basic256 proficiency level on national tests in such subjects as reading, math, and science, which means that they likely cannot do grade-level work. In schools where a majority of the students are poor, the percentage of students who do not perform at even the basic level on national tests rises to at least two-thirds. In non-urban schools, by contrast, the figure is nearly the opposite: Two-thirds of the students score at least at the basic level on national tests.

Finally, dropout rates for urban schools are dramatically higher than they are for non-urban schools. Dropout rates in all large, central-city school districts significantly exceed the national average of 11%. Among the nation’s forty-seven largest school districts, the average dropout rate is nearly twice the national average. In New Jersey, dropout rates in urban high schools reached as high as 47%. In Chicago, the dropout rate for children who begin their education in certain elementary schools has climbed to as high as 86%.

B. Creating Ghetto Schools: Residential Segregation and Milliken I

Today’s urban schools are not the product of accident, unadulterated preference, or simple economics. Rather, urban schools have been largely shaped by two complementary forces: residential segregation and the Court’s decision in Milliken I. Residential segregation and particularly the exodus of middle-class whites from central cities have served not only to isolate African-American students, but also to concentrate the effects of poverty in densely populated urban neighborhoods. Milliken I essentially immunized suburban schools from the reach of desegregation plans, thereby cutting off access to wealthier school systems and providing a “safe” haven for middle-class families seeking to exit urban schools.

C. The Costs of Isolation

[T]he concentration of poverty within urban schools has significant consequences for school financing and educational achievement, for several reasons. First, students from impoverished backgrounds have greater needs and thus cost more to educate. Schools filled with impoverished students, therefore, generally will be costlier to run than schools filled with middle- and upper-income students. Second, the difficulties created by concentrated poverty in schools may not be best addressed, and are perhaps irremediable, by increased expenditures. There are theoretical reasons and empirical evidence to support this hypothesis. Third, the fact that the schools themselves are located in poor neighborhoods seems to exert a deleterious influence on the administration of the school districts and to create a dynamic in which the schools are seen as jobs programs as much as academic institutions. The maladministration of schools makes implementing reforms and spending money wisely more difficult, which ironically both casts doubt on the accuracy of the argument that money does not matter (because it is hard to know if money matters when it is not spent properly) and gives great political and popular strength to the same argument (because many urban schools provide glaring examples of the apparent inefficacy of increased expenditures).

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1. Monetary Costs

Students from lower socioeconomic backgrounds come to school with greater needs than their more advantaged peers. Such students suffer more from malnutrition and poor health care; lack of parental involvement and a nurturing, stimulating home environment; frequent changes of residence; and exposure to violence and drug use. As a result of these obstacles, “[m]any poor children start school with an approximately two-year disadvantage compared to many suburban youngsters. This two-year disadvantage often increases when urban students move through the educational system without receiving special attention.” Greater needs require greater resources: Disadvantaged students simply cost more to educate, requiring additional educational programs and non-academic services such as health care and counseling. It follows that schools with large concentrations of impoverished students will face the greatest educational costs.

2. Nonmonetary Costs and the Limited Efficacy of Increased Expenditures

The second cost of racially isolated schools is more complex, and it is not one that money seems capable of addressing. The cost stems from the influence of peers. It is intuitive to any parent, as well as to those who remember their own experience in elementary and secondary school, that a student’s peers will exert a strong influence on the student’s attitude toward and behavior in school. Intuition in this instance coincides with social science evidence, which demonstrates not only that a student’s peers affect behavior, but that they also affect academic achievement. James Coleman’s famous, mammoth, and controversial 1966 report, entitled Equality of Educational Opportunity, found that “student body characteristics” account for “an impressive percent of variance” in student achievement, and that the influence appears greatest on students from disadvantaged backgrounds. Numerous studies since the Coleman report have reached similar conclusions, and there now exists a well-developed body of research that indicates that achievement levels depend not only on a student’s own socioeconomic status but also on the status of his or her peers.

To the extent that a student’s peers and the culture of a school exert demonstrable influence on student achievement, simply increasing expenditures in schools populated by poor students will not necessarily affect achievement. The stronger the influence of peers on performance, the less likely it is that money will make much of a difference—and the more likely it is that changing the composition of the school will make a difference. Unfortunately, but not surprisingly, no experiments exist in which this specific hypothesis has been tested to determine whether negative peer influences, at some point, could be overcome by increased expenditures. There is, however, some empirical evidence that suggests that even substantial increases in school expenditures have little effect on student achievement when the student composition remains predominantly poor.

Of course, one potential explanation for the apparent lack of relationship between spending and achievement is that money is not being spent effectively. This point is made by researchers who suggest that money spent wisely does258 matter. [Yet, the] debate over the extent to which “money matters” will not likely be resolved soon. It is sufficient for now to make two observations. First, it is fairly clear that increased expenditures in racially isolated and high-poverty schools have not yet led to significant improvements in student achievement. Second, the studies support the intuitive position that money spent poorly will not translate into academic gains, while money spent wisely may indeed accomplish some academic improvement—although just how much gain one can reasonably expect is far from clear. In short, the evidence indicates that increasing expenditures in racially and socioeconomically isolated schools has not in the past been a very effective strategy for assisting students; whether it will be in the future is at best debatable and depends on whether the resources are spent wisely.

D. A Reprise

Race plays an important, if not paramount, role in keeping certain school districts beyond the reach of school finance reform. [T]o the extent that race relations are responsible for the concentration of poor minority students in urban public schools, education policies that hold some promise of improving race relations may be more effective in the long run than policies that intentionally or unintentionally avoid the issue. School finance reform seems to fall squarely in the latter category because it operates from a premise that accepts rather than challenges the fact that most urban schools are isolated by race and poverty. Insofar as it is the very fact of isolation that must be overcome in order to improve substantially the opportunities of students attending urban schools, alternatives (or at least additions) to school finance litigation deserve to be considered—or reconsidered.

NOTES AND QUESTIONS

1. Do you agree that school finance reforms are unlikely to or cannot deliver quality educational opportunities to urban students? Would it be more accurate to say that the cost of delivering an adequate education to students in concentrated poverty is simply too high and hard to reasonably expect that states will do so? Is it any more reasonable to believe that schools will make systemic reforms that produce more integration?

2. Ryan also implies an economic argument: that the cost of educating students in concentrated poverty is inefficient. If a state had no choice but to deliver an adequate education to urban students, would the economic inefficiency of doing so create an incentive for integration that does not currently exist? If so, is the first step to push as hard as possible on adequately funding segregated schools until the state sees the error in its ways?

3. If states, even after school finance reform, are providing inadequate funds for urban schools, should individual students have some remedy other than waiting for the state to allocate sufficient resources? What would that remedy be?

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4. Scholars, including Ryan, have argued for a fourth wave of school finance litigation that would not demand more financial resources but more changes to student assignment policies. See Christopher E. Adams, Is Economic Integration the Fourth Wave in School Finance Litigation?, 56 Emory L.J. 1613, 1627-1631 (2007). Thus far, the Connecticut Supreme Court is the only state court to recognize such a claim under a state constitution. If money is insufficient to deliver equal or adequate opportunities to urban schools, does it follow that a constitutional right to education includes the right to a different school environment, such as an economically integrated one, or is it sufficient that the state makes its best effort to provide a good education in neighborhood schools?

5. In a second article, Ryan argues that, while race is not explicitly at issue in most school finance cases, race plays an implicit role in how the public and institutional stakeholders respond to demands for reform. James E. Ryan, The Influence of Race in School Finance Reform, 98 Mich. L. Rev. 432 (1999). He points out that the only two studies available on public attitudes found that white citizens “inaccurately perceived school finance reform as primarily benefiting blacks” and that “the level of support among whites depended as much upon racial attitudes as it did upon self-interest.” Id. at 432-433. Ryan himself then attempts to assess whether race has played a role in how courts and legislatures respond to school finance litigation. Based on his review of litigation and legislative outcomes, he found

that minority school districts—particularly urban minority districts—do not fare as well as white districts in school finance litigation. More precisely, minority districts do not win school finance cases nearly as often as white districts do, and in the few states where minority districts have successfully challenged school finance schemes, they have encountered legislative recalcitrance that exceeds, in both intensity and duration, the legislative resistance that successful white districts have faced. As this and additional evidence suggests, there are strong reasons to believe that the racial composition of the school district plays an influential role in determining its success or failure in school finance litigation and legislative reform.

Id. at 433-434. Ryan admits to painting with a “broad brush” and that various factors might explain the results, but of the 18 successful school finance cases decided at that time, only 1 was brought on behalf of predominantly minority urban school districts. Id. at 435, 451. In contrast, of the 19 unsuccessful cases, 7 were on behalf of urban minority districts. Id. at 453. “In sum, predominantly minority districts have won only three of the twelve school finance challenges (25%) in which they were plaintiffs. Predominantly white districts, by contrast, have won eleven of fifteen cases (73%) if one excludes the cases involving large coalitions of districts.” Id. at 455. Moreover, if one looks only at districts that are both predominantly minority and urban, the success rate was only 12.5 percent. Id. And while as a general principle “court decisions declaring school finance systems un-constitutional typically provoke some controversy and legislative opposition,” the few minority districts that secured court victories have “faced protracted legislative battles that were more intense and longer-lasting than those typically faced by successful white districts.” Id. at 457-458.

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What other factors might explain these results: more political power in suburban and rural districts (who look out for themselves), the level of need in high-poverty minority districts, or something else?

6. Thus far, neither desegregation nor school finance litigation has garnered effective and lasting success for minority students. Should advocates refocus on desegregation, continue with school finance, blend the two into a single strategy, or embark on other reforms? For a discussion of potential new strategies, see The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity (Charles J. Ogletree, Jr. & Kimberly Jenkins Robinson, eds. 2015).

Advocates did eventually challenge segregation as a violation of equality and adequacy within the context of school finance theories. As described in the second chapter, mandatory school desegregation was waning in several respects due to unfavorable Supreme Court precedent. At the same time, school finance litigation was gaining momentum and establishing crucial legal principles: an affirmative right to education and state responsibility for delivering it. These two principles would potentially allow advocates to avoid the difficulties presented in proving intentional discrimination, interdistrict violations, and state responsibility, all of which had served to drastically limit desegregation in federal court. The first and most significant attempt to take advantage of more favorable state precedent was in Connecticut.

Sheff v. O’Neill

678 A.2d 1267 (Conn. 1995)

Peters, Chief Justice.

The public elementary and high school students in Hartford suffer daily from the devastating effects that racial and ethnic isolation, as well as poverty, have had on their education. Federal constitutional law provides no remedy for their plight. The principal issue in this appeal is whether, under the unique provisions of our state constitution, the state, must take further measures to relieve the severe handicaps that burden these children’s education. The issue is as controversial as the stakes are high. We hold today that the needy schoolchildren of Hartford have waited long enough. The constitutional imperatives of our state constitution entitle the plaintiffs to relief. At the same time, the constitutional imperative of separation of powers persuades us to afford the legislature, with the assistance of the executive branch, the opportunity, in the first instance, to fashion the remedy that will most appropriately respond to the constitutional violations that we have identified.

Statewide, in the 1991-92 school year, children from minority groups constituted 25.7 percent of the public school population. In the Hartford public261 school system in that same period, 92.4 percent of the students were members of minority groups, including, predominantly, students who were either African-American or Latino. Fourteen of Hartford’s twenty-five elementary schools had a white student enrollment of less than 2 percent. The Hartford public school system currently enrolls the highest percentage of minority students in the state. In the future, if current conditions continue, the percentage of minority students in the Hartford public school system is likely to increase rather than decrease. Since 1980, the percentage of African-Americans in the Hartford student population has decreased, while the percentage of Latinos has increased. Although enrollment of African-American students in the twenty-one surrounding suburban towns has increased by more than 60 percent from 1980 to 1992, only seven of these school districts had a minority student enrollment in excess of 10 percent in 1992. Because of the negative consequences of racial and ethnic isolation, a more integrated public school system would likely be beneficial to all schoolchildren.

A majority of the children who constitute the public school population in Hartford come from homes that are economically disadvantaged, that are headed by a single parent and in which a language other than English is spoken. The percentage of Hartford schoolchildren at the elementary level who return to the same school that they attended the previous year is the lowest such percentage in the state. Such socioeconomic factors impair a child’s orientation toward and skill in learning and adversely affect a child’s performance on standardized tests. The gap in the socioeconomic status between Hartford schoolchildren and schoolchildren from the surrounding twenty-one suburban towns has been increasing. The performance of Hartford schoolchildren on standardized tests falls significantly below that of schoolchildren from the twenty-one surrounding suburban towns.

Directly or indirectly, the state has always controlled public elementary and secondary education in Connecticut. The legislature directs many aspects of local school programs, including courses of study and curricula, standardized testing, bilingual education, graduation requirements and school attendance. Since 1941, as a result of a state statute[,] the public school district boundaries in Hartford have been coterminous with the boundaries of the city of Hartford. Since at least 1909, as a result of another state statute[,] schoolchildren have been assigned to the public school district in which they reside.

The legislature provides substantial support to communities throughout the state to finance public school operations. State financial aid is distributed so that the neediest school districts receive the most aid[, which significantly benefits Hartford].

The state has not intentionally segregated racial and ethnic minorities in the Hartford public school system. Except for a brief period in 1868, no students in Connecticut have intentionally been assigned to a public school or to a public school district on the basis of race or ethnicity. There has never been any other manifestation of de jure segregation either at the state or the local level. In addition to various civil rights initiatives undertaken by the legislature from 1905 to 1961 to combat racial discrimination, the state board of education was reorganized, during the 1980s, to concentrate on the needs of urban262 schoolchildren and to promote diversity in the public schools. Since 1970, the state has supported and encouraged voluntary plans for increasing interdistrict diversity.

The state has nonetheless played a significant role in the present concentration of racial and ethnic minorities in the Hartford public school system. Although intended to improve the quality of education and not racially or ethnically motivated, the districting statute that the legislature enacted in 1909 is the single most important factor contributing to the present concentration of racial and ethnic minorities in the Hartford public school system. The districting statute and the resultant school district boundaries have remained virtually unchanged since 1909. The districting statute is of critical importance because it establishes town boundaries as the dividing line between all school districts in the state.

Article eighth, §1, and article first, §§1 and 20, impose on the legislature an affirmative constitutional obligation to provide schoolchildren throughout the state with a substantially equal educational opportunity. It follows that, if the legislature fails, for whatever reason, to take action to remedy substantial inequalities in the educational opportunities that such children are being afforded, its actions and its omissions constitute state action.

The affirmative constitutional obligation that we recognized in Horton v. Meskill, 376 A.2d 359 (Conn. 1977), and Horton v. Meskill, 486 A.2d 1099 (Conn. 1985), was not premised on a showing that the legislature had played an active role in creating the inequalities that the constitution requires it to redress. In Horton I, we determined that the state’s educational financing scheme was unconstitutional even though it was facially nondiscriminatory and even though the disparities resulting therefrom had not been created intentionally by the legislature. In declaring this statutory scheme unconstitutional in Horton I, and in requiring further remedial action in Horton III, we necessarily determined that the state’s failure adequately to address school funding inequalities constituted the state action that is the constitutional prerequisite for affording judicial relief.

The claims now before us likewise implicate the legislature’s affirmative constitutional obligation to provide a substantially equal educational opportunity to all of the state’s schoolchildren. The plaintiffs document the existence of an extensive statutory system developed in response to the legislature’s plenary authority over state public elementary and secondary schools. As a general matter, the plaintiffs challenge the failure of the legislature to address continuing unconstitutional inequities resulting, de facto, from that scheme. In addition, and more specifically, they point to two statutes that directly impact on their claims of constitutional deprivation. State law sets the borders of school districts to coincide with town boundaries; and requires all children to attend public school within the district in which they reside. The trial court expressly found that the enforcement of these statutes constitutes the “single most important factor” creating the present racial and ethnic imbalance in the Hartford public263 school system. The failure adequately to address the racial and ethnic disparities that exist among the state’s public school districts is not different in kind from the legislature’s failure adequately to address the “great disparity in the ability of local communities to finance local education” that made the statutory scheme at issue in Horton I unconstitutional in its application.

[T]he defendants urge us to follow federal precedents that concededly require, as a matter of federal constitutional law, that claimants seeking judicial relief for educational disparities pursuant to the equal protection clause of the United States constitution must prove intentional governmental discrimination. For two reasons, we are not persuaded. First and foremost, the federal cases start from the premise that there is no right to education under the United States constitution. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). Our Connecticut constitution, by contrast, contains a fundamental right to education and a corresponding affirmative state obligation to implement and maintain that right. Second, the federal cases are guided by principles of federalism. Principles of federalism, however, do not restrict our constitutional authority to enforce the constitutional mandates contained in article eighth, §1, and article first, §§1 and 20.

[U]nder our law, which imposes an affirmative constitutional obligation on the legislature to provide a substantially equal educational opportunity for all public schoolchildren, the state action doctrine is not a defense to the plaintiffs’ claims of constitutional deprivation. The state had ample notice of ongoing trends toward racial and ethnic isolation in its public schools, and indeed undertook a number of laudable remedial efforts that unfortunately have not achieved their desired end. The fact that the legislature did not affirmatively create or intend to create the conditions that have led to the racial and ethnic isolation in the Hartford public school system does not, in and of itself, relieve the defendants of their affirmative obligation to provide the plaintiffs with a more effective remedy for their constitutional grievances.

III

We turn now to the merits of the plaintiffs’ claims. No statute, no common law precedent, no federal constitutional principle provides this state’s schoolchildren with a right to a public education that is not burdened by de facto racial and ethnic segregation. The plaintiffs make no such claim. The issue that they raise is whether they have stated a case for relief under our state constitution, which was amended in 1965 to provide both a right to a free public elementary and secondary education; Conn. Const., art. VIII, §1; and a right to protection from segregation. Conn. Const., art. I, §20. This issue raises questions that are difficult; the answers that we give are controversial. We are, however, persuaded that a fair reading of the text and the history of these amendments demonstrates a deep and abiding constitutional commitment to a public school system that, in fact and in law, provides Connecticut schoolchildren with a substantially equal educational opportunity. A significant component of that substantially equal educational opportunity is access to a public school education that is not substantially impaired by racial and ethnic isolation.

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Our analysis of this issue has three parts. First, what are the constituent elements of the affirmative constitutional mandate to provide all public schoolchildren with a substantially equal educational opportunity in the context of alleged racial, ethnic and socioeconomic disparities? Second, does the plaintiffs’ complaint encompass these elements? Third, have the plaintiffs proven their claim?

Since Horton I, it is common ground that the state has an affirmative constitutional obligation to provide all public schoolchildren with a substantially equal educational opportunity. Any infringement of that right must be strictly scrutinized.

The issue presented by this case is whether the state has fully satisfied its affirmative constitutional obligation to provide a substantially equal educational opportunity if the state demonstrates that it has substantially equalized school funding and resources. The defendants urge us to adopt such a limited construction of our constitution. The plaintiffs, to the contrary, urge us to adopt a broader formulation. They argue that the combination of “racial segregation, the concentration of poor children in the schools, and disparities in educational resources…deprive [Hartford schoolchildren] of substantially equal educational opportunities.” We agree with the plaintiffs in part. We need not decide, in this case, the extent to which substantial socioeconomic disparities or disparities in educational resources would themselves be sufficient to require the state to intervene in order to equalize educational opportunities. For the purposes of the present litigation, we decide only that the scope of the constitutional obligation expressly imposed on the state by article eighth, §1, is informed by the constitutional prohibition against segregation contained in article first, §20. Reading these constitutional provisions conjointly, we conclude that the existence of extreme racial and ethnic isolation in the public school system deprives schoolchildren of a substantially equal educational opportunity and requires the state to take further remedial measures.

Two factors persuade us that it is appropriate to undertake a conjoint reading of these provisions of our state constitution. One is the special nature of the affirmative constitutional right embodied in article eighth, §1. The other is the explicit prohibition of segregation contained in article first, §20.

The affirmative constitutional obligation of the state to provide a substantially equal educational opportunity, which is embodied in article eighth, §1, differs in kind from most constitutional obligations. Organic documents only rarely contain provisions that explicitly require the state to act rather than to refrain from acting. As we observed, however, in Horton I “educational equalization cases are ‘in significant aspects sui generis’ and not subject to analysis by accepted conventional tests or the application of mechanical standards. The wealth discrimination found among school districts differs materially from the usual equal protection case where a fairly defined indigent class suffers discrimination to its peculiar disadvantage. The discrimination is relative rather than absolute.” Nothing in the description of the relevant legal landscape in any of265 our cases suggests that the constitutional right that we articulated in Horton I was limited to school financing.

For Connecticut schoolchildren, the scope of the state’s constitutional obligation to provide a substantially equal educational opportunity is informed and amplified by the highly unusual² provision in article first, §20, that prohibits segregation not only indirectly, by forbidding discrimination, but directly, by the use of the term “segregation.” The section provides in relevant part: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination…because of…race [or]…ancestry.…”

The express inclusion of the term “segregation” in article first, §20, has independent constitutional significance. Fundamental principles of constitutional interpretation require that “[e]ffect must be given to every part of and each word in our constitution.”

The issue before us, therefore, is what specific meaning to attach to the protection against segregation contained in article first, §20, in a case in which that protection is invoked as part of the plaintiff school-children’s fundamental affirmative right to a substantially equal educational opportunity. In concrete terms, this issue devolves into the question of whether the state has a constitutional duty to remedy the educational impairment that results from segregation in the Hartford public schools, even though the conditions of segregation that contribute to such impairment neither were caused nor are perpetuated by invidious intentional conduct on the part of the state.

Linguistically, the term “segregation” in article first, §20, which denotes “separation,” is neutral about segregative intent. The section prohibits segregation that occurs “because of religion, race, color, ancestry, national origin, sex or physical or mental disability” without specifying the manner in which such a causal relationship must be established.

Whatever this language may portend in other contexts, we are persuaded that, in the context of public education, in which the state has an affirmative obligation to monitor and to equalize educational opportunity, the state’s awareness of existing and increasing severe racial and ethnic isolation imposes upon the state the responsibility to remedy “segregation…because of race [or]…ancestry.…” We therefore hold that, article eighth, §1, as informed by article first, §20, requires the legislature to take affirmative responsibility to remedy segregation in our public schools, regardless of whether that segregation has occurred de jure or de facto.

The history of the promulgation of article eighth, §1, and article first, §20, supports our conclusion. First, it is undisputed that the duty to provide a public education contained in article eighth, §1, and the prohibition against segregation contained in article first, §20, were proposed to and adopted by the voters of this state in response to the constitutional convention of 1965. When the convention delegates debated the desirability of both amendments to our state constitution, they recognized and endorsed the landmark decision in Brown v. Board266 of Education (1954). The primary motivation for the addition of article eighth, §1, to the constitution in 1965 appears to have been [to] provide [an] express right to public elementary and secondary education in its constitution. The delegates’ expectation that the proposed amendments to the constitution would secure interrelated constitutional rights was underscored by [one delegate’s] remark that article first, §20, was intended to be applied in the context of the “rights of freedom in education.”

Second, it is significant that the debate over the amendment of article first, §20, manifested the intention of the convention delegates to extend broad protection to all persons from all forms of racial and ethnic discrimination and segregation. The debate over the express inclusion of the term “segregation” focused not on whether including such a term might reach too far, but rather on whether it might invite too narrow a construction of the prohibition against discrimination. [T]he convention delegates inserted into article first, §20, constitutional language that was intended to prohibit not only discrimination, but also segregation on the basis of race or ethnicity.

Finally, the convention delegates’ manifest intent that article first, §20, by prohibiting segregation, should provide “total protection against discrimination” supports our conclusion that they intended to encompass de facto segregation in the circumstances presented by the present case. If significant racial and ethnic isolation continues to occur within the public schools, for which the legislature has an affirmative constitutional obligation to provide a substantially equal educational opportunity, no special showing of an invidious segregative intent is required.

It would be illogical not to prohibit all such segregation in light of the legislature’s otherwise comprehensive assumption of responsibility for the education of Connecticut schoolchildren. The legislature has created the current school districts, has required students to attend school and has determined which students will attend a particular school district. The state cannot now avoid its responsibilities by invoking constitutional restraints articulated for different purposes under different constitutional provisions.

Sound principles of public policy support our conclusion that the legislature’s affirmative constitutional responsibility for the education of all public schoolchildren encompasses responsibility for segregation to which the legislature has contributed, even unintentionally. The parties agree, as the trial court expressly found, that racial and ethnic segregation is harmful, and that integration would likely have positive benefits for all children and for society as a whole. Further, as the trial court also expressly found, the racial and ethnic isolation of children in the Hartford schools is likely to worsen in the future.

Racial and ethnic segregation has a pervasive and invidious impact on schools, whether the segregation results from intentional conduct or from unorchestrated demographic factors. “[S]chools are an important socializing institution, imparting those shared values through which social order and stability are maintained.” Schools bear central responsibility for “inculcating [the] fundamental values necessary to the maintenance of a democratic political system.” When children attend racially and ethnically isolated schools, these267 “shared values” are jeopardized: “If children of different races and economic and social groups have no opportunity to know each other and to live together in school, they cannot be expected to gain the understanding and mutual respect necessary for the cohesion of our society.” “[T]he elimination of racial isolation in the schools promotes the attainment of equal educational opportunity and is beneficial to all students, both black and white.” Our state constitution, as amended in 1965, imposes on the state an affirmative obligation to respond to such segregation.

The final issue before us is whether the plaintiffs have proven a violation of their fundamental right, under the state constitution, to a substantially equal educational opportunity that is free from substantial racial and ethnic isolation. We conclude that they have done so.

The plaintiffs have shown, and the defendants do not contest, that the disparities in the racial and ethnic composition of public schools in Hartford and the surrounding communities are more than de minimis. [T]he Hartford public school system currently enrolls the highest percentage of minority students in the state, and this percentage is likely to become even higher in the future, if current conditions continue. These disparities jeopardize the plaintiffs’ fundamental right to education.

The defendants stress that the trial court also made extensive findings about the significant role that adverse socioeconomic conditions play in the difficulties encountered by Hartford schoolchildren. [These findings] do not undermine the plaintiffs’ claim. The trial court’s findings simply demonstrate that Hartford’s schoolchildren labor under a dual burden: their poverty and their racial and ethnic isolation. These findings regarding the causal relationship between the poverty suffered by Hartford schoolchildren and their poor academic performance cannot be read in isolation. They do not diminish the significance of the stipulations and undisputed findings that the Hartford public school system suffers from severe and increasing racial and ethnic isolation, that such isolation is harmful to students of all races, and that the districting statute codified at §10-240 is the single most important factor contributing to the concentration of racial and ethnic minorities in the Hartford public school system. The fact that, as pleaded, the plaintiffs’ complaint does not provide them a constitutional remedy for one of their afflictions, namely, their poverty, is not a ground for depriving them of a remedy for the other.

The uncontested evidence of the severe racial and ethnic isolation of Hartford’s schoolchildren demonstrates that the state has failed to fulfill its affirmative constitutional obligation to provide all of the state’s schoolchildren with a substantially equal educational opportunity. [T]he disparity in access to an unsegregated educational environment in this case arises out of state action and inaction that, prima facie, violates the plaintiffs’ constitutional rights, although that segregation has occurred de facto rather than de jure.

[The court addresses the remedy in subsequent portions of the opinion.]

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NOTES AND QUESTIONS

1. The court writes that the “failure adequately to address the racial and ethnic disparities that exist among the state’s public school districts is not different in kind from the legislature’s failure adequately to address the ‘great disparity in the ability of local communities to finance local education.’ ” Are these two things, in fact, constitutionally the same?

2. Does the Connecticut Supreme Court hold that students have an affirmative right to integrated schools, to be free from segregation, to be free from the negative effects of segregation, or something else? Where does it find this right in the state constitution? Is the court persuasive?

3. Do all racially isolated schools in the state run afoul of the constitution, or do certain facts set Hartford apart?

4. The state argued that there was no state action to produce this segregation and, thus, it did not violate the students’ rights. The court, however, rejects this argument. What is the court’s rationale?

5. Is the court’s interpretation of the prohibition on segregation as applying to both de jure and de facto segregation too broad? Does it place too great of an affirmative duty on the state?

6. Other than that one is based on federal law and the other state law, what is the difference between the rights recognized in Sheff and Brown v. Board of Education and its progeny? Which offers the broader or more valuable right?

7. In a deleted portion of this opinion, the court specifically refrained from addressing whether segregated schools deprive students of an adequate education because plaintiffs had not properly raised it below. More recently, plaintiffs have brought adequacy claims in Connecticut and won. See Connecticut Coal. for Justice in Educ. Funding, Inc. v. Rell, 990 A.2d 206 (Conn. 2010).

8. Does racial segregation itself cause the educational problems identified by the court, or is it students’ individual poverty and/or poverty concentration? If it is the latter, how can the state be responsible for the effect of poverty on students’ educational outcomes?

9. Given the Supreme Court’s holding in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), does Connecticut have a compelling interest in voluntary desegregation? In other words, does complying with its state constitutional mandate amount to a compelling interest? If so, to what extent would a remedy that redrew school district boundaries pursuant to race or that allowed transfers across district lines based on race be constitutional?

While Connecticut courts were considering Sheff, similar litigation was initiated in Minnesota. In fact, two different parties filed suit against the state of Minnesota. Those cases (Xiong v. State and NAACP v. Minnesota) were subsequently consolidated into a single case, No. 95-14800 (Minn. Dist. Ct. filed 1995), as both charged that concentrated poverty and racial segregation in schools interfere with the state’s delivery of a constitutionally adequate education. The plaintiffs emphasized that “68 percent of Minneapolis students were269 students of color and 66 percent were eligible for free or reduced price lunch, compared with a statewide population that was 14 percent minority and 26 percent FARM eligible.” Richard D. Kahlenberg, All Together Now 176 (2001). To substantiate their claim that segregation in Minneapolis schools was inhibiting their ability to obtain an adequate education, plaintiffs also cited research that indicated low-income students were twice as likely to achieve at high levels in suburban schools. Id.

Based on the Minnesota Supreme Court’s holding in Skeen v. State, 505 N.W.2d 299, 313 (Minn. 1993), that education was a fundamental right and places a duty on the state legislature “to establish a general and uniform system of public schools,” M.S.A. Const. art. 13, §1, the plaintiffs alleged that the currently existing segregated education constituted a per se violation of the Minnesota Constitution’s education and equal protection clauses. NAACP Compl. at 13, 17-19; Xiong Compl. at 2, 18-20. The state moved to dismiss the case on more than one occasion, but the trial court denied its motions. After the Minnesota Supreme Court refused to hear the state’s appeal, the trial court ordered the case to proceed to trial. On the eve of trial, the state settled the case by promising to implement an interdistrict transfer program that would allow students formerly trapped in high-poverty and high-minority schools to attend school in the surrounding school districts. Kahlenberg, supra, at 176. Thus, the Minnesota courts never reached a definitive decision on whether segregation interferes with students’ ability to receive a constitutional education, but they did hold that education is a fundamental right, permitted plaintiffs to proceed on their segregation claim, and approved a settlement agreement that afforded students a remedy to de facto segregated education.

The Minneapolis litigation was followed by similar litigation in New York. In Paynter v. State, 797 N.E.2d 1225 (N.Y. 2003), the plaintiffs argued that the high-poverty concentration in the Rochester City School District led to widespread academic failure in contrast to the surrounding districts, and that this failure demonstrated students were receiving inadequate educational opportunities. Compl. at 2, Paynter, 797 N.E.2d 1225. New York’s highest court rejected this argument and found that “allegations of academic failure alone, without allegations that the State…[does not] provide minimally acceptable educational services, are insufficient to state a cause of action under the Education Article.” Paynter, 797 N.E.2d at 1229. The court, ironically, delivered its opinion on the same day that it upheld a school finance claim on behalf of New York City’s predominantly poor and minority students in Campaign for Fiscal Equity v. State, 801 N.E.2d 326 (N.Y. 2003).

The claims in Campaign for Fiscal Equity were distinct from Paynter. The claim of inadequate education in Campaign for Fiscal Equity was premised on insufficient financial support from the state, which allowed the plaintiffs to meet the court’s required showing of both inadequate inputs and outputs, and the interconnection between the two. Id. at 332 n.3. New York’s highest court has tended to conceptualize inputs as tangible resources such as buildings, books, teachers, and services. Finance claims fall squarely within this approach, whereas exposure to concentrated poverty does not because the claim is not necessarily one of resource deprivation. Consequently, the court interpreted the claim in Paynter as implicating demographic patterns that are disconnected from state policy and270 resources. Even if the plaintiffs established inadequate education in Rochester, they did not connect the inadequacy to a resource deprivation attributable to the state.

After a decade of dormancy, litigants in Minneapolis are once again reviving this state-based antisegregation theory. In 2015, Plaintiffs filed a lawsuit against the state, alleging that the racial and poverty segregation in the metropolitan area violates the state constitution’s education clause, equal protection clause, and due process clause, as well as the Minnesota Human Rights Act. See Derek Black, Can Plaintiffs’ Educational Adequacy Challenge to the Growing Hypersegregation in Minneapolis Reinvigorate a National Movement?, Education Law Prof Blog, Dec. 3, 2015, http://lawprofessors.typepad.com/education_law/2015/12/can-plaintiffs-educational-adequacy-challenge-to-the-growing-hypersegregation-in-minneapolis-reinvig.html. They emphasized that in the metropolitan area segregation dramatically increased in recent years, with little or no effort by the state to abate it. “[T]he public schools of the City of Minneapolis are approximately 66 percent children of color and 64 percent free or reduced lunch; and the public schools of the City of Saint Paul are 78 percent children of color and 72 percent free or reduced lunch,” whereas the adjoining surrounding school districts are “overwhelmingly white” and predominantly middle income. Id. Within the city school districts themselves, the state created predominantly white and middle-income schools alongside hypersegregated poor and minority schools. Plaintiffs alleged that “[t]he segregation and hyper-segregation [in these schools] have been the result of boundary decisions by the Minneapolis and Saint Paul School Districts, made with the knowledge and consent of defendants, which have had both the purpose and effect of creating and increasing segregation of the Minneapolis and Saint Paul public schools by race and socioeconomic status.” Plaintiffs alleged that the state’s charter school laws have made matters worse. At the time of the complaint,

The Twin Cities metropolitan area now contains 131 charter schools, over 80 percent of which are segregated by race, socioeconomic status, or both. [Nearly seventy charter schools] are either more than 95 percent students of color or more than 80 percent white students. Nearly a third (42 of 131) of charters in the Twin Cities are more than 95 percent students of color. In addition, there is a growing pattern in the suburbs of predominantly white charter schools locating near more racially diverse traditional schools. In 2013, 67 percent of suburban charters (32 out of 48 schools) were predominantly white (defined as more than 80 percent white students) compared to just 44 percent of traditional schools in the suburbs. More than half of predominantly white suburban charters were located in the attendance areas of traditional schools that were significantly more racially diverse. This figure has nearly tripled in the previous five years.

Id.

NOTES AND QUESTIONS

1. Can Paynter be distinguished from Sheff, NAACP, and other future claims?

2. Is the holding and rationale in Sheff unique to Connecticut’s constitution, or is it transferrable? The court in Sheff noted that only two states have271 constitutions that include prohibitions on segregation. Is an express prohibition of segregation necessary to reach the holding in Sheff? Are the principles of equity and adequacy embodied in the various education clauses sufficient? Several scholars have made the case for similar claims in states other than Connecticut. See, e.g., Christopher E. Adams, Is Economic Integration the Fourth Wave in School Finance Litigation?, 56 Emory L.J. 1613, 1643 (2007); Derek W. Black, Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373 (2012); John Charles Boger, Education’s “Perfect Storm”? Racial Resegregation, High-Stakes Testing, and School Resource Inequities: The Case of North Carolina, 81 N.C. L. Rev. 1375 (2003); Angela Ciolfi, Note, Shuffling the Deck: Redistricting to Promote a Quality Education in Virginia, 89 Va. L. Rev. 773 (2003); Molly McUsic, The Future of Brown v. Board of Education: Economic Integration of the Public Schools, 117 Harv. L. Rev. 1334, 1355-1356 (2004); James E. Ryan, Schools, Race, and Money, 109 Yale L.J. 249, 307-310 (1999); Taryn Williams, Outside the Lines: The Case for Socioeconomic Integration in Urban School Districts, 2010 B.Y.U. Educ. & L.J. 435 (2010).

Economic Efficiency and Segregation

Segregated schools may also raise issues under state constitutions that mandate an efficient education or system of schools because the cost of delivering a quality education in high-poverty schools can be inordinately high. Rather than suggesting that minority students cannot receive a quality education in high-poverty schools, many integration supporters would instead argue that delivering a quality education in high-poverty schools requires enormous resources. Moreover, the cost is far more per pupil than would otherwise be necessary in an integrated school. See generally Christopher E. Adams, Is Economic Integration the Fourth Wave in School Finance Litigation?, 56 Emory L.J. 1613, 1627-1631 (2007). First, because poor students are already at risk of academic failure and that risk is further increased by attending a high-poverty school, these schools need the best, not the worst, teachers. Charles Clotfelter et al., High-Poverty Schools and the Distribution of Teachers and Principals 4 (2007). Yet, as discussed earlier, it costs significantly more to lure high-quality teachers to high-minority, high-poverty schools. Second, for various practical reasons, high-poverty schools cost more to keep safe than other schools. See generally Michelle Parthum, Using Litigation to Address Violence in Urban Public Schools, 88 Wash. U. L. Rev. 1021, 1031-1037 (2011). Third, the need for intensive instructional and social service programs tends to be significantly higher in high-poverty schools. Of course, socioeconomically integrated schools must also provide supplemental services for at-risk children, but they do not bear the other, sometimes exponentially, higher costs that are associated with high-poverty schools.

Federal legislation and studies explicitly recognize these realities. The federal government estimates that the cost of educating low-income students is approximately 40 percent more than middle-income students and that the per-pupil costs rise exponentially as both the percentage and overall number of poor students in a district increases. 20 U.S.C. §§6335(c)(1)(B), 6335(c)(2)(B),272 6337(d)(1)(A), 6337(d)(1)(B) (2006); Education Finance Incentive Grant Program, Pub. L. No. 107-110, §1125(A), 115 Stat. 1425, 1525 (2002) (codified at 20 U.S.C. §6337); Nat’l Ctr. for Educ. Stats., U.S. Dep’t of Educ., Inequalities in Public School District Revenues 62 (1998). Federal funding for low-income students, however, only offsets a portion of these additional costs. In short, the cost of delivering adequate education in segregated schools where poverty is concentrated is extremely high and economically inefficient.

The higher cost of educating students in concentrated poverty presents both constitutional and practical problems. As is implicit in most of the foregoing cases and materials, the unfortunate truth is that districts and states rarely have the resources and/or the will to fund quality education in high-poverty school districts. The prospects can be even worse during times of economic crises. During the recession that began in 2008, schools across the board experienced huge cuts in their state funding and their local revenues. See Nicholas Johnson et al., An Update on State Budget Cuts, Ctr. Budget & Policy Priorities (Feb. 9, 2011); Tamar Lewin & Sam Dillon, With Revenue Cut, Schools Are Warning of Huge Layoffs, N.Y. Times, Apr. 21, 2010, at A12; Leslie A. Maxwell, School Funding on Block Again as States’ Fiscal Pain Continues with Budget Gaps Growing, About Half Expect K-12 Cuts, Educ. Wk., Mar. 3, 2010. While some jurisdictions may have the capacity to raise taxes or absorb the losses without affecting educational quality, property-poor districts’ revenue generation tends to be maxed out even during times of prosperity. Thus, they have no excess to draw on or to cut during crisis. See generally Tenn. Small Sch. Sys., 851 S.W.2d at 143, 144 (Tenn. 1993); Comm’n on Educ. Fin., Nat’l Res. Council, Making Money Matter: Financing America’s Schools 46-47? (Helen F. Ladd & Janet Hansen eds., 1999). Economic hardship can inevitably force them to diminish the quality of their educational offerings below already insufficient levels. See, e.g., David Harrison, New Budget Cuts Threaten School Funding Settlements, Stateline, Dec. 6, 2010. During the recession, class sizes steadily grew, teacher quality began to decline, and by 2015 an extreme nationwide teacher shortage hit many of the most disadvantaged states and districts, although few were entirely immune. See generally Motoko Rich, Across Country, A Scramble Is on to Find Teachers, N.Y. Times, Aug. 10, 2015, at A1. In short, the practical reality has been a choice between two options: providing poor and minority students a quality education within an integrated environment or offering them a low-quality education elsewhere. Unfortunately, the frequent choice is a segregated education that lacks the resources necessary for quality education, yet still costs more than integrated education. The economic cost of educating students in high-poverty schools when other options are available raises constitutional concerns. Most obviously, low-quality education, regardless of its cause, is a problem in any state where students have a right to an adequate education. But in those states whose constitutions mandate an efficient education or prohibit waste, economically inefficient segregated education is arguably a direct violation. See, e.g., Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989); Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979); see also Derek W. Black, Middle Income Peers as Educational Resources and the Constitutional Right to Equal Access, 53 B.C. L. Rev. 373 (2012).

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PROBLEM

Revisit your state education clause and any court opinions interpreting it. In addition, identify any state constitutional clauses relating to equal protection and equity, along with any seminal holdings of your state courts interpreting these clauses. Can you make an argument that your state constitution would prohibit segregation under some circumstances? Would it prohibit intentional racial segregation, de facto racial segregation, high-poverty schools, or high-poverty minority schools? Could you make a more compelling argument that it requires educational environments that incorporate diversity (even if they are not “integrated” in the sense that federal desegregation law previously contemplated)? Finally, even if your state does not provide a plausible argument for integrating or diversifying schools, consider whether a student attending a high-poverty and consistently low-performing school could, pursuant to your state’s laws, demand admission to a better school outside his or her neighborhood?

F. THE FEDERAL ROLE IN SCHOOL FINANCE EQUITY

The largely undiscussed factor in school finance thus far is federal policy. Starting primarily with the Elementary and Secondary Education Act of 1965 (ESEA), the federal government began investing in public schools and has gradually increased its investment over the years. On average, federal funds account for less than 10 percent of school budgets. But in schools with high percentages of low-income, special education, or ELL students, that percentage is significantly higher. Moreover, the funds are large enough on a statewide basis that the federal government is able to push various policy agendas. A discussion of those policy agendas is largely reserved for Chapters 12 and 13, which address federal reforms such as the Every Student Succeeds Act, No Child Left Behind Act, Race to the Top, teacher assessments, and charter schools. Relevant to this chapter is the extent to which federal policy reduces funding inequities and inadequacies.

For the past decade, Congress has spent roughly $15 billion a year on primary and secondary schools through the ESEA. Congress has occasionally made other investments in public schools, but those have tended to be temporary. For instance, during the recession that began in 2008, Congress allotted an additional $87 billion for public schools, most of which was designed to replace the diminishing local revenues available to schools and avoid massive teacher layoffs. Joseph P. Viteritti, The Federal Role in School Reform: Obama’s “Race to the Top,” 87 Notre Dame L. Rev. 2087 (2012). Those funds, however, did not flow through the ESEA, but rather were distributed per their own one-time rules. Regardless, ESEA remains the primary and most consistent funding and regulation mechanism at the federal level.

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The primary purpose of ESEA funding is to supplement the local money available to meet the special needs of poor and disadvantaged children. Accepting the money also obligates schools to comply with various nondiscrimination and equality statutes. ESEA includes various different titles, but the most relevant to poor children is Title I.

Congress initially enacted the ESEA in 1965 as part of the War on Poverty and to create financial incentives for schools to desegregate. Its focus was on schools serving poor children living in areas of concentrated poverty. Office of Educ., U.S. Dep’t of Health, Educ. & Welfare, History of Title I ESEA 17 (1969). By accepting federal funds, the schools became subject to various conditions embodied in federal statutes. Most important among these conditions was compliance with Title VI of the Civil Rights Act of 1964, which prohibited discrimination in federally funded programs and directed federal agencies to implement regulations to enforce Title VI.

As discussed in the previous chapter, federal funds in combination with Title VI were instrumental in increasing desegregation. Within just a few years, however, Congress suspected that schools were spending the funds irresponsibly. Some wasted the money on frivolous things while others simply used federal dollars to replace state dollars. Phyllis McClure, Ctr. for Am. Progress, The History of Educational Comparability in Title I of the Elementary and Secondary Education Act of 1965, in Ensuring Equal Opportunity in Public Education: How Local School District Funding Practices Hurt Disadvantaged Students and What Federal Policy Can Do About It 9, 13 (2008). Either way, Congress’s goal of providing extra resources for low-income students was undermined. In response, Congress imposed additional conditions and restrictions on the receipt of Title I funds.

First, Congress conditioned the receipt of Title I funds on the concept of comparability, requiring that the state and local funding at Title I schools be comparable to that at non–Title I schools. 84 Stat. 121, 124 (1970). Thus, spending $2,000 per pupil in state and local funds at a non–Title I school while spending only $1,500 per student at a Title I school would be a violation, even if the federal funds were sufficient to bring the Title I school up to $2,000. Congress’s second related condition was that school districts use federal funds to supplement those funds that they were already spending, rather than using federal dollars to replace or supplant existing funds. Id. This condition also operates across time and attempts to prevent schools from reducing local spending gradually over the course of several years.

The effectiveness of these conditions on federal funds, unfortunately, has diminished significantly over time. Because education budgets have become larger and more complex, the U.S. Government Accountability Office (GAO) concluded that the supplement, not supplant, standard has become almost impossible to enforce and should be eliminated. GAO, Disadvantaged Students: Fiscal Oversight of Title I Could Be Improved 24-26 (2003). The Department of Education implicitly concedes as much by making little effort to enforce it.

The best way to address the problem would be through the maintenance-of-effort standard, id. at 24-25, but Congress gradually loosened the requirements of this measure, making it relatively pointless. For the past few decades, the maintenance-of-effort standard has only required that school districts275 maintain their funding at 90 percent of the previous year. Every Student Succeeds Act, Public Law 114-95, December 10, 2015, 129 Stat. 1802 §§1017, 8019; 20 U.S.C. §§6321(a), 7901 (2006). This standard was previously 95 percent. 45 C.F.R. §116.19 (1977). Under the current standard, most districts can easily swap their own funds for federal funds without violating the maintenance-of-effort requirement. A study by Ross Wiener suggests this may be occurring all too often. He found that in Texas and Colorado schools, “federal and other categorical funds, which were intended to provide additional opportunities, are used to fill in for inequitable distribution of [state and local] foundational funds.” Strengthening Comparability: Advancing Equity in Public Education, in Ensuring Equal Opportunity, supra, at 40.

Congress and the Department of Education likewise have increased flexibility in the comparability standards to the point that they provide little check on inequity. Initially, the ESEA and its implementing regulations required that the expenditures at Title I schools be within 5 percent of the expenditures of other schools within a district. 45 C.F.R. §116.26 (1972); 45 C.F.R. §116a.26 (1977). That number was later changed to 10 percent and eventually abandoned altogether. 45 C.F.R. §116 (1978). Under the No Child Left Behind Act, Title I schools needed only to be “substantially comparable” to other schools in the district, which is based on school services “as a whole.” 20 U.S.C. §6321(c)(1)(b) (2006). That language was so vague and forgiving that it did not require any meaningful equity between schools. In fact, the statute specifically indicated that “[n]othing in this subchapter shall be construed to mandate equalized spending per pupil for a state, local educational agency, or school.” Id. §6576. To make matters worse, teacher salaries were exempted from any comparability analysis, even though they regularly comprise 80 to 90 percent of school budgets. Id. §6321(c)(2)(B). This was not the case with earlier versions of ESEA and its regulations. Rather than fix these problems, the 2015 reauthorization of ESEA eliminated the substantial comparability provision from the relevant section of the Act altogether. Every Student Succeeds Act, Public Law 114-95, December 10, 2015, 129 Stat. 1802 §1012.

The point of Title I funds, of course, is to offset the disadvantages that poorer districts suffer. During the 1960s and 1970s, Congress directed Title I funds to only the most racially isolated and poverty-stricken districts. See generally History of Title I ESEA, supra, at 17. As a result, they had the maximum impact. Today, however, more than 90 percent of school districts and 58 percent of schools receive Title I funds. C. Joy Farmer, The No Child Left Behind Act: Will It Produce a New Breed of School Financing Litigation?, 38 Colum. J.L. & Soc. Probs. 443, 456 (2005). The problem is that the threshold for eligibility is a mere 2 percent of students below the poverty level in the school district. 34 C.F.R. §200.71 (2008). As a result, Title I funds go to a wide cross-section of schools, relatively few of which are predominantly poor schools. The effect is twofold: to limit the impact of the funds in those schools that receive them and to divert needed funds away from the poorest schools to others. In fairness, federal funding routinely makes up more than 10 percent of the budget of the neediest school districts, but the amount still falls far short of a 40 percent supplement that the federal government estimates is optimal. Moreover, the poorest schools often must stretch276 their Title I dollars further than wealthier schools. As Goodwin Liu notes, the average Title I aid per student in schools that have low levels of poor students is $773, while that number is only $475 in schools with the highest levels of poor students. Goodwin Liu, Improving Title I Funding Equity Across States, Districts and Schools, 93 Iowa L. Rev. 973, 1010 (2008). Thus, Title I funds are sometimes lower in the schools that need them the most.

These counterintuitive results stem from the fact that Congress distributes Title I funds through no less than four different funding formulas and grants, some of which work against one another or have problematic built-in biases. One problem is that the formulas include a statutory minimum that provides a base level of funding to all states, regardless of their need, poverty, or locality costs. See, e.g., 20 U.S.C. §§6333(d), 6334(b). This results in states with small populations, like South Dakota and Rhode Island, receiving a disproportionately large amount of money that bears no relation to the number of poor students they serve. Educ. Trust, Funding Gaps 2006, at 3 tbl. 1, 4 tbl. 2 (2006). In fact, because they have so few poor students, their Title I funding per student exceeds the amount that two-thirds of the other states receive. Id. Likewise, Wyoming and Vermont receive the highest per-pupil allotments of Title I funds in the country at nearly $3,000 per pupil, but have the fewest number of poor children in the country. Id.

In addition, Title I places significant weight on district size. 20 U.S.C. §6335(c)(2)(C). Title I per-pupil allotments increase as the size of the school district increases. The assumption is that school district size corresponds with differing population density and geographic location costs. While this is the case in some instances, data shows that school district size does not closely correspond with population density or with city versus rural school districts. Liu, supra, at 1003. Instead, school district size is generally random. For instance, small districts are just as likely to be found in rural Alabama as they are in the New York City metropolitan area. Derek W. Black, How the Elementary and Secondary Education Act Undermines Equal Protection and Congress’s Duty to Remedy It, 90 B.U. L. Rev. 313, 347 (2010).

Finally, Title I’s funding formulas may exacerbate funding inequalities between states by basing Title I funding on the amount the state already spends on education. 20 U.S.C. §§6333(a)(1)(B), 6334(a)(2)(B), 6335(b)(1)(B), 6337(b)(1)(A)(i). Two premises motivate this practice: that the state expenditures reflect the varying cost of education among states and that basing Title I funds on state expenditures will create an incentive for states to increase their own expenditures. Unfortunately, neither has proven accurate. Data shows that the variances in state contributions do not closely correlate with varying geographic costs. Rather, in many instances, state funds vary based on the local commitment to education. Educ. Trust, supra. Theoretically, basing federal funds on local effort and commitment creates an incentive for states, but as Liu points out, a state like Mississippi would need to increase its local funding by $54 million to get a mere $3 million increase from Title I. Liu, supra, at 985. In short, for every extra dollar that Mississippi might spend on education, it would receive less than six cents from Title I. Thus, it offers no real incentive. Commentators conclude that basing Title I grants on the amount that states spend has277 the perverse effect of penalizing poor states and rewarding wealthy ones. Black, supra; Liu, supra. For this and other reasons, the GAO has also recommended eliminating state expenditures as a weighting factor in Title I funding formulas. GAO, Title I Funding: Poor Children Benefit Though Funding Per Poor Child Differs 33 (2002).

While the 2015 reauthorization of the ESEA did not eliminate any of these structural inequities, Congress did, for the first time in decades, implicitly acknowledge that serious problems exist. Congress offered no mandated solutions, but created programs designed to potentially stimulate future change. First, the 2015 reauthorization required that states assess and address resource inequity in those schools that fall in the bottom 5 percent of the states’ academic performance standards. States could then use some of their ESEA set-aside funds to redress those resource inequities. Every Student Succeeds Act, Public Law 114-95, December 10, 2015, 129 Stat. 1802 §1005 (d)(2)(C). Second, Congress included funding for a pilot program to support districts that want to adopt weighted student funding formulas. Id. at §1501. Third, while Congress left Title I’s irrational funding formulas in place, it funded a professional evidence-based study of the formulas to determine who they advantage and disadvantage, and to propose changes to the formula if necessary. Id. at §9211.

The details of each of these provisions reveal that they are very narrow in scope and rely on voluntary acquiescence by states and local districts. In this respect, they offer no guarantee or expectation of substantive change. On the other hand, each of these provisions was a huge ideological step for Congress, which had completely ignored these problems for decades. These specific programs are consistent with the notion that Congress is slowly appreciating the nuances of school funding and the unfairness of a happenstance approach to those nuances.

NOTES AND QUESTIONS

1. The federal role and mission in education has changed over time. A later chapter on federal policy will discuss a shift in focus to achievement test scores and achievement gaps and away from funding and equity. Is this simply a change in the way we now perceive the issue of equity, skepticism toward the relevance of money, or a political unwillingness to challenge a pattern of funding inequity?

2. What federal standards might be effective in addressing educational inequities? Do you see any practical or political barriers to instituting more effective standards?

3. If Title I formulas are irrational, as this section suggests, why does Congress structure them this way?

4. Some argue that Title I actually makes funding inequities worse, particularly by basing Title I funds largely on the level of funds a state already spends. Is this a fair criticism, or does Title I simply fail to help as much as it could?

5. Title I does have a weighting for concentrated poverty that, for instance, provides more money per pupil to a district with 28 percent poverty than it does278 to a district with 14 percent poverty. This additional weighting, however, flattens at a relatively low level, so that a district with 75 percent poverty would receive the same funding per pupil as a district with 30 percent poverty. Scholars have criticized this as failing to fully account for the impacts of concentrated poverty. See, e.g., Black, supra, at 344-346.

G. THE FUTURE OF EDUCATIONAL EQUALITY

1. Opportunity to Learn Measures

In an effort to reframe the debate regarding school funding and education reform, some civil rights and education reform groups have begun to argue for opportunity to learn standards. Their premise is that certain educational resources are key to positive education outcomes. Students denied these resources are denied opportunities to learn or, at least, see their opportunities diminished. They assert that students must be guaranteed an opportunity to learn, which includes “(i) high-quality, early childhood education; (ii) highly effective teachers; (iii) a broad, college-bound curriculum that will prepare all students to participate effectively in our democracy; and (iv) equitable instructional resources.” Lawyers’ Comm. for Civ. Rts. under Law, NAACP, NAACP Legal Defense & Educ. Fund, Nat’l Council for Educating Black Children, Nat’l Urb. League, Rainbow PUSH Coal., & Schott Found. for Pub. Educ., Framework for Providing All Students an Opportunity to Learn through Reauthorization of the Elementary and Secondary Education Act (July 2010). Focusing on these measures, a recent report by the Schott Foundation found that poor, minority, and other disadvantaged students have just 51 percent of the opportunity to learn as white students do. The report argues that we cannot begin a serious or realistic discussion of other attempts to improve school quality and the achievement gap until we first secure equal opportunities to learn for all students. Schott Found. for Pub. Educ., Lost Opportunity: A 50 State Report on the Opportunity to Learn in America (2009).

Casting educational rights in terms of these specific opportunities to learn has both benefits and limitations. First, legislation focused on the opportunity to learn would treat education as an affirmative right rather than a negative one. Students would not need to demonstrate that the deprivation of these rights caused a change in their achievement or was discriminatory. It would be enough that a student was deprived of an opportunity. On the other hand, framing education in these terms would place a huge onus on policymakers and advocates to ensure they have identified the important aspects of an opportunity to learn, as other inequities will likely be ignored. If equitable instructional resources, for instance, do not significantly impact student outcomes, then including them in the key components of an opportunity to learn would only distract efforts away from more important opportunities. Likewise, the failure to include an opportunity, such as quality facilities or modern technologies, might undermine efforts in that area. Finally, overly broad articulations of the key279 opportunities to learn would render the right unenforceable and irrelevant, while definite standards run the risk of being both under- or overinclusive.

The 1994 reauthorization of the ESEA actually included opportunity to learn standards. The problem was that those standards were both voluntary and vague. States were free to reject the nationally proposed standards and adopt their own, and no meaningful constraints were placed on states in creating their own standards. The legislation vaguely provided that the standards were “the criteria for, and the basis of, assessing the sufficiency or quality of the resources, practices, and conditions necessary at each level of the education system…to provide all students with the opportunity to learn the material in voluntary national content standards or State content standards.” Nonetheless, these standards were still seen by many as intruding on the province of state and local educators. Consequently, they were removed from the Act just months later when the majority in Congress shifted from Democrats to Republicans. Michael Rebell, Poverty, “Meaningful” Educational Opportunity, and the Necessary Role of the Courts, 85 N.C. L. Rev. 1467, 1517 (2006).

QUESTION

Does framing the conversation as “opportunity to learn” have any advantage, or is it just another way of making decades-old arguments? Does it still involve the same troubling social science issues we have seen elsewhere?

2. Constitutional and Statutory Amendments

Others have called for a federal constitutional amendment. One proposed amendment simply provides: “All persons shall enjoy the right to a public education of equal high quality” and “Congress shall have power to enforce and implement this article by appropriate legislation.” H.J.R. 29 (introduced Mar. 3, 2009, by Rep. Jesse Jackson, Jr.). The Southern Education Foundation more recently released a detailed argument and strategy for adopting a constitutional amendment to protect education. No Time to Lose: Why America Needs an Education Amendment to the US Constitution to Improve Public Education (2009). The report indicates that

[a]n effort to amend the US Constitution in relation to education would: 1) underscore the importance of the public schools to the preservation of democratic values and national security; 2) draw attention to the question of whether the current system of resource allocation for public schools is sufficient to meet the needs of the 21st century; 3) remind Americans that the quality of education now depends extensively on venue—where a child lives—and that inequality is built into the current system; 4) lead to consideration of whether the federal government should be obliged to help schools that serve students in low resource states or districts gain access to more funding and resources; and 5) create ‘space’ for intermediate measures to reduce inequality by legislation or the reform of practice.

Id. at 5.

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The report further noted that even a failed effort at a constitutional amendment might yield significant benefits:

One of the lessons of the unsuccessful effort to enact the Equal Rights Amendment is that it mobilized public awareness of the reality of gender-based discrimination, encouraged creative and voluntary responses to it, created a focal point for the development of public policy related to diverse manifestations of gender-based discrimination, and mobilized key constituencies to use political processes to secure redress of grievances. There is general consensus today that though the ERA was unsuccessful, many of the aims to which the amendment was devoted have been achieved, at least to a degree.

Id. at 33.

Interestingly, there have been constitutional movements at the state level. Most notable, the citizens of Florida amended their educational constitutional clause via referendum in 1998 after the Florida Supreme Court rejected a school finance claim. Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 407-408 (Fla. 1996). The new constitutional amendment includes some of the strongest language of any state: “The education of children is a fundamental value of the people of the State of Florida. It is, therefore, a paramount duty of the state to make adequate provision for the education of all children residing within its borders. Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.…” Fla. Const. art. IX, §1.

NOTES AND QUESTIONS

1. Is a federal constitutional amendment necessary to improve education? Does Congress already have all the authority it needs to remedy educational inadequacy and inequality? Are there any benefits to maintaining a local system that would be lost with a federal system? See Michael Heise, The Political Economy of Education Federalism, 56 Emory L.J. 125 (2006).

2. What are the chances of success for a constitutional amendment? Public polling, including during the 2008 presidential elections, consistently shows that a strong majority of voters rate education as a very important issue and expect government to address failings in public education. No Time to Lose, supra, at 31, 32.

3. Rather than focus on a constitutional amendment, some have proposed federal statutory solutions. See, e.g., Congressman Chaka Fattah, Student Bill of Rights, available at http://fattah.house.gov/index.cfm?sectionid=51&section tree=4,51; H.R. 2373, 110th Congress (2007-2008) (defining fundamental educational opportunity, requiring states to deliver it, and providing students a federal cause of action for violations); Fiscal Fairness Act, H.R. 1294, 112th Congress (2011) (proposing that federal education funds be conditioned on states ensuring equitable finance distribution schemes).

4. In 2011, the U.S. Department of Education established a commission to study educational inequality. That commission issued its final report in 2013. It281 made five broad recommendations: (1) restructuring finance systems to focus on equitable resources and their cost-effective use; (2) ensuring all students have access to high-quality teachers, school leaders, and instructional opportunities; (3) providing high-quality early learning for all children, but especially for low-income children; (4) increasing supports outside the classroom through parental engagement, “access to health and social services, and extended instructional time and assistance for at-risk groups”; and (5) making improvements in educational accountability and governance. The Equity and Excellence Commission, For Each and Every Child: A Strategy for Equity and Excellence 16 (2013).

PROBLEM

Assume members from a well-organized community group in your state walk into your office. The state went through extensive school finance litigation a few years ago. The state supreme court’s first opinion held that students have a right to an adequate education and that the state’s financing system is failing to provide several districts with the resources necessary to deliver it. After protracted litigation in the lower courts and two trips back to the state supreme court, the state reformed its school finance formulas to drive significant additional resources to needy districts. While they have received additional funds, four years into this new formula, urban school districts have yet to see the improvement they had expected. The parents in the community group believe their schools are still beset with large numbers of inexperienced or low-quality teachers, subject to ever-changing teaching strategies, and lack the financial and nonfinancial resources necessary for their children to receive a quality education. What strategy would you propose: new school finance litigation, a different state constitutional theory, legislative change at the state level, federal litigation, federal legislation, a federal constitutional amendment, or something else?

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1 See, e.g., Whitney C. Allgood, The Need for Adequate Resources for At-Risk Children at 73-103 (Econ. Policy Inst., Working Paper No. 277, 2006), available at http://www.epinet.org/workingpapers/wp277.pdf (reviewing extensive studies correlating pre-kindergarten programs, lower class sizes, teacher qualifications, teacher working conditions, and other academic supports with improved student outcomes); Kristen Harknett et al., Do Public Expenditures Improve Child Outcomes in the U.S.? A Comparison Across Fifty States 17 (Ctr. for Policy Research, Maxwell Sch., Syracuse Univ., Working Paper Series No. 53, 2003), available at http://www.cpr.maxwell.syr.edu/cprwps/pdf/wp53.pdf (finding “particularly strong and positive effects” between additional educational expenditures and student test scores and adolescent behavior).

2 The only other constitutions that explicitly prohibit segregation are those of Hawaii and New Jersey. [No court in either state has addressed whether these constitutions prohibit de facto segregation in schools.]

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A. DISTINGUISHING THE OVERLAPPING CATEGORIES OF ETHNICITY, LANGUAGE, AND IMMIGRATION STATUS

While occupying a relatively small place in the published opinions of federal courts, the educational opportunities that English Language Learners¹ (ELLs) and children of immigrants receive are central to the future success of our public education system. A few decades ago, ELL students and children of immigrants were small in number and heavily concentrated in the southwestern United States. Today, ELL students attend public schools in increasingly large numbers and in every state in the country. In fact, ELL students are the fastest-growing segment of the U.S. population under the age of 18. English Language Learners, Educ. Wk. (Aug. 4, 2004, updated June 16, 2011), http://www.edweek.org/ew/issues/english-language-learners/. In 1979, ELL students represented just 9 percent of children in the United States. Id. By 2007, that number had reached approximately 20 percent. Id. In real numbers, this increase was from 5.5 million students to just under 11 million. Rod Paige, U.S. Sec’y of Educ., U.S. Dep’t of Educ., Press Conference Announcing New Policies for English Language Learners (Feb. 19, 2004).

Making the educational response to this growth more complex is the fact that ELL students are so diverse. The largest group of ELL students—80 percent—speak Spanish at home. Naomi Chudowsky & Victor Chudowsky, Center on Education Policy, Has Progress Been Made in Raising Achievement for English Level Learners? 3 (2010). But these students, while sharing language, have families who come from numerous different countries, each of which284 may have different education systems and quality levels. The remaining 20 percent of ELL students who do not speak Spanish sometimes share very little in common other than the fact that their English skills are limited. In fact, the ethnicity of students who comprise the remaining 20 percent varies from state to state. For instance, in Alaska, Montana, and North Dakota, the second largest ELL group is Native American, who comprise a very small group in other states. Id.

Putting national origin and language status aside, ELL students’ legal residency status also differs. Most ELL students are born in this country and are citizens (nearly 80 percent). Patricia Gándara & Megan Hopkins, Forbidden Language: English Learners and Restrictive Language Policies (2010). Yet significant portions are not citizens or have parents who are not citizens or legal residents, which adds another potential barrier to the continuity and quality of their education. Based on population surveys, 1.6 million ELL students were also undocumented immigrants in 2003. In addition, 4.6 million children, regardless of their own residency status, had at least one parent who was an undocumented immigrant, which amounts to about 5 percent of the public school population. Randy Capps et al., Found. for Child Dev., Promise or Peril: Immigrants, LEP Students and the No Child Left Behind Act 27 (2004). The challenges that these students face can also extend beyond language and residency status to include poverty, housing, and health care. But regardless of cause, the end result for far too many has been to exit school prematurely. Latino/a youth, for instance, are four times more likely to drop out of high school than white students, and two times more likely to drop out of high school than African Americans. Nat’l High Sch. Ctr., Educating English Language Learners at the High School Level: A Coherent Approach to District- and School-Level Support 1 (2009). By one estimate, more than one out of three Latino/a youth between the ages of 16 and 24 were high school dropouts in 2006. Id.

As with race, the law has attempted to respond to those language challenges that are susceptible to legal remedy. Yet in most instances, the law in regard to ELL students and children of immigrants has developed separately from the law of racial discrimination. Historically, students whose first language is not English have faced at least three distinct equality challenges in our public educational system: segregation, access to meaningful instruction that allows them to overcome language barriers, and admission to school systems themselves. Each of these barriers to education has its own distinct law. Thus, this chapter takes up each separately.

Each of these legal frameworks tends to implicate a different set of circumstances, as well as a distinct group of students within language minority communities. For instance, the purported justification for the segregation of Latino students was a lack of proficiency in English. If this were the case, only some Latino students would have been subject to segregation. But segregation often included students of Hispanic descent who were fluent in English, making the segregation appear to be just another form of race or ethnic segregation. Thus, legal developments regarding the segregation of Latino students, while implicating ELL issues, could not fairly be called ELL law. Rather, it was ethnic segregation that intersected with language barriers in some instances. In short, the segregation of ethnic minorities is a broader issue than ELL rights.

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For those same reasons, the protections afforded to ELL students are irrelevant to immigrant students or children of immigrants who are fluent in English. In this respect, laws relating to ELL students are not race or ethnicity based, but skill based. Yet one cannot underestimate the role that race and ethnicity plays in the way the law responds to ELL claims. Consider that disability too is skill-based in certain respects, but disability does not naturally intersect with race or ethnicity, and thus perceptions of disability are not as obviously impacted by race and ethnicity. In short, ELL rights in theory are designed to address educational needs and skills, not racial, ethnic, or cultural struggles; but in reality, they have grappled with both types of issues.

Keeping these distinctions in mind is important as you read this chapter. The legal frameworks for segregation, language programs, and access to school, on their face, apply to a distinct group of students confronting a distinct educational obstacle. Thus, the rights in each paradigm are not transferrable to the others. In effect, this chapter is not the law of Latino students, ethnicity, language minorities, or immigrants, but rather a chapter that lumps the law relating to ethnic minorities, language minorities, and immigrants into a single chapter because the issues intersect. Because they intersect and because each of these individual legal paradigms cannot be entirely separated from the larger racial, ethnic, and cultural contexts in which they operate, the issues involved in each can be complex. The last section of this chapter briefly touches on how the rights of ELL, immigrant, and ethnic minority students relate to additional topics in education law, such as disability and school finance.

B. SEGREGATION

Marie C. Scott, Resegregation, Language, and Educational Opportunity: The Influx of Latino Students into North Carolina Public Schools

11 Harv. Latino L. Rev. 123 (2008)

The Latino role in the legal history of school desegregation is often left in the shadows of Brown and the African American struggle. This overlooked history includes shining victories and deep frustrations. It is also marked by seeming disjunctions in legal strategies on the part of Latino education advocates as they attempted to navigate the complexity of racial segregation and language concerns within a larger civil rights environment that was dominated by the black-white dynamic. Today, the educational situation of Latinos is further complicated by the dispersal of the Latino population throughout the United States, the socioeconomic status of the community, and immigration issues, as well as the ethnic and language minority statuses with which Latinos have always struggled.

During the first few decades of the twentieth century, Mexican Americans in the Southwest experienced significant school segregation in addition to286 segregation in most other aspects of public life. However, unlike the statute-imposed racial segregation of African Americans in Southern schools, the segregation of Mexican American children in the Southwest was achieved through school administration policymaking. School administrations justified their actions by pointing to perceived language, intelligence, and health differences between the Mexican American and Anglo student bodies. The schools Mexican Americans were forced to attend were not only separate but often unequal with inferior facilities and resources.

Latino civil rights in general and the issue of educational rights in particular have been influenced by a series of organizations and a variety of litigation strategies and interests that they pursued. The changing litigation strategies reflect changing opportunities and reactions to events happening outside of the Latino litigation. Latino school litigation has been defined by several distinct phases: 1) pre-World War II local attempts to desegregate schools in Texas and California, 2) post-World War II efforts that were more widespread, 3) post-Brown and post-Lau v. Nichols, 414 U.S. 563 (1974), efforts to make bilingual education part of the larger desegregation process, and 4) the movement in the 1970s and 1980s away from desegregation concerns to promote bilingual education.

In the early pre-World War II cases, Mexican American litigants made limited progress by winning a few lower court cases that only had local effect. The primary strategy in these early desegregation cases was to attack segregationist policy by arguing that the segregation of Mexican American children was illegal because they were racially white and no statute allowed separation on the basis of a Latin national origin. However, change came slowly, and it was not until after World War II that Mexican Americans and Latino organizations like [League of United Latin American Citizens (LULAC)] were able to pursue desegregation aggressively.

The most influential of the Mexican American school desegregation cases was Mendez v. Westminster, 161 F.2d 774 (9th Cir. 1947). The Mendez case spurred the desegregation of Mexican American students in California schools and played an important role in the evolution of desegregation cases that led to Brown seven years later. Litigation was brought by several Mexican American families, who were later supported by LULAC, on behalf of their school-aged children who had been denied admission to schools reserved for Anglo whites in Orange County, California. The Mexican American families argued that the school districts’ practice of segregating Mexican children violated the Fourteenth Amendment. The School Board argued that the children were separated because of their limited English proficiency. But the district court found that the school administrators had based their assignment decisions primarily on the children’s surnames. The district court ruled that segregating Mexican American students without credible examination to determine that they had English language deficiencies denied them equal protection of the law under the Fourteenth Amendment, and the court enjoined the districts from continuing to segregate.

The Ninth Circuit affirmed that in the absence of a California statute that permitted the segregation of Mexican-origin students—in contrast to the laws that allowed for the segregation of Native American and Asian American287 students—the segregation of Latino students by school authorities violated the Equal Protection Clause. The plaintiffs’ victory in Mendez led California to be the first state to desegregate schools. Governor Earl Warren, who would later become Chief Justice of the Supreme Court and write the Brown opinion, responded to the Mendez decision by ordering all the school districts in California to eliminate de jure segregation of Mexican Americans. Moreover, the following year, the California State Legislature repealed the statutory school segregation of Asian Americans and Native Americans.

Many non-Latino civil rights organizations, including the NAACP, the ACLU, the American Jewish Congress, and the Japanese-American Citizens League, became involved in the case by submitting amicus curiae briefs. Mendez was seen as a “guinea pig” case for the larger issues of de jure school segregation throughout the nation and Jim Crow laws in the South. The brief filed by the NAACP asked the court to strike down the “separate but equal” doctrine [from] Plessy v. Ferguson. The NAACP brief in Mendez was the basis for the brief eventually submitted in Brown, including both the assertion that in reality separate could never be equal and the importance of social science evidence to understand that reality.

Although LULAC and other organizations continued their legal fight to end school segregation for Mexican Americans, the larger legal community and national attention focused on the black-white desegregation issue after the Brown decision in 1954. During the 1960s and the early 1970s, Latinos began to self-identify in a more radicalized manner with the growth of the Chicano Movement and parallel developments in the Puerto Rican community. This growing redefinition led to a shift in legal strategy for Latino organizations—from claiming equality through emphasizing their whiteness to seeking legal protection under Brown as a minority group suffering from discrimination. During this period, new Latino organizations like the Mexican American Legal Defense and Education Fund (MALDEF) and the Puerto Rican Legal Defense and Education Fund (PRLDEF) were formed and started to advocate for Latino civil rights by following distinct strategies from those used by the older Latino organizations. As federal courts struggled with Brown’s “all deliberate speed” mandate and the subsequent foot dragging of Southern school districts, it was not until Keyes v. Sch. Dist. No. One in 1973 that the situation of Latinos reentered the national litigation spotlight.

In Keyes, the Supreme Court recognized that Latinos were an identifiable minority group for school desegregation purposes and could not be treated as white in desegregation plans. The plaintiffs claimed that the school district had intentionally redrawn attendance lines and implemented other methods of maintaining racially segregated schools even as some of the city’s neighborhoods had started to integrate. The Court reframed the white-black paradigm through which desegregation had been viewed since Brown into a white-non-white model because of the significant presence of Latino students in the Denver public schools. At the time of Keyes, Latino students made up one-fourth of the students in Denver. The collapsing of Latinos and blacks into a single group for purposes of desegregation policy recognized that both groups were being discriminated against but disregarded the special needs of Latino students. In the remedy stage288 of Keyes, the district court ordered a plan that would allow some schools to be predominately Latino, so bilingual-bicultural programs could be implemented in those schools. The bilingual-bicultural aspect of the remedial plan was proposed by Latino advocacy groups. But the Tenth Circuit vacated that portion of the desegregation plan because the concentration of minority students it created undermined the overall desegregation plan in the court’s mind. The Tenth Circuit explained, “Bilingual education…is not a substitute for desegregation. Although bilingual instruction may be required to prevent the isolation of minority students in a predominately Anglo school system…such instruction must be subordinate to a plan of school desegregation.” As exemplified by the situation in Keyes, concerns about Latinos as a language minority added a new level of complication to the Latino struggle for educational rights, as Latino organizations started to think beyond desegregation to other issues that prevented Latino students from receiving an equal educational opportunity.

QUESTIONS

1. What, if anything, distinguishes the segregation of Latino students from the segregation of African American students? Are the motives the same or different?

2. Why did it take so long for the Supreme Court to explicitly recognize and respond to the segregation of Latino students? Has the segregation of Latinos been underemphasized or underappreciated and, if so, why?

3. Should Latinos and African Americans be treated as distinct groups in desegregating schools with particular remedies addressed to each? In terms of achieving racial balance, should courts seek to balance the numbers of whites, Latinos, and African Americans in each school or only the number of whites in proportion to the total number of Latinos and African Americans combined?

Gary Orfield & Chungmei Lee, Racial Transformation and the Changing Nature of Segregation

(2006)

In the 2003-2004 school year the national totals showed Latinos are the largest minority group at 19 percent, followed by 17 percent black students, four percent Asian students and one percent American Indian students. All of the minority communities are growing much faster than whites, with Latino and Asians increasing most rapidly. The fact that Latinos are the youngest group, have the largest families, and have children at younger ages will result in population growth independent of immigration. For African Americans, on the other hand, child bearing is now similar to the white rates, though the population is younger and thus producing relatively larger numbers of children.

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Changing Patterns of Segregation by Region

Latino segregation is higher than black segregation on some measures in the South and West. In the West, where Latinos are concentrated, 81 percent of Latinos are in schools with nonwhite majorities, followed by 78 percent in the Northeast and the South. In the West, 39 percent of Latinos attended intensely segregated (90-100%) minority schools (compared to 32 percent for blacks in the South), and 12 percent attended apartheid (99-100%) schools, the same as the black South. These startling figures are even higher in the Northeast where 44 percent were enrolled in intensely segregated schools and 15 percent in apartheid schools. In the South, which includes the substantial Latino enrollment in Texas, 40 percent of the Latino public school enrollment attended intensely segregated minority schools, far higher than the region’s black segregation, and 10 percent attended apartheid schools. Segregation increased for Latinos in all regions except the Northeast, where it remains very high even though there is a slight decline on some measures, perhaps reflecting Latino suburbanization trends. The lowest segregation levels for Latinos were in the Border and Midwest states where the Latino enrollments were very small but segregation was growing in both as secondary migration patterns to these regions emerged.

The Historical Context of Segregation for Black and Latino Students

[While history reveals “more than two decades of rising contact between black and white students” following “the passage and enforcement of the 1964 Civil Rights Act,” the] story was very different for Latinos. As the number of Latinos soared and residential segregation increased, the schools in many areas became vastly more segregated and there was no significant initiative to address it. The Office for Civil Rights had been denied enforcement powers by President Nixon. The basic problem targeted by most Latino rights advocates was language, not segregation, and the basic fight was for bilingual education, a movement that enjoyed considerable success in the 1970s, met mounting resistance in the 1980s and sharp reversals in the 1990s. Segregation steadily increased and by some measures and in some regions became substantially higher than black segregation. Many desegregation plans were designed only to desegregate black students, since they were designed before the right of Latinos to desegregation remedies was even established by the Supreme Court and often with no civil rights lawyers representing Latino interests. As Latinos become ever more segregated in inferior schools with extremely low graduation rates and test scores, with many found to be failing under [the] No Child Left Behind Act, federal courts have ended desegregation in their communities and issued rulings which extinguished the rights of Latinos’ children without ever considering the issue of Latino segregation.

Multiracial Schools and the Need for a New Paradigm

Growing segregation of black and Latino students from white students is a basic educational trend. But there is another large and more encouraging290 development—the emergence of multiracial schools on a large scale. Over the past half century there has been a good deal of energy devoted to creating and studying biracial schools, particularly those with black and white students. But we now see the emergence of thousands of schools that are not biracial but multiracial, often multiracial with two or more historically excluded “minority” groups and relatively few white students. Others may be multiracial, for example, with relatively advantaged groups of whites and Asians and a smaller black or Latino group.

Across the U.S. some 8.6 million students are attending multiracial schools of a sort never thought of when the school desegregation struggle was framed. Whites are by far the students least likely to attend such schools—only about an eighth (12 percent) of whites do. Asian students are by far the most likely to be in such schools; 42 percent attend these multiracial institutions. Twenty-seven percent of Latinos, 23 percent of African Americans and 20 percent of American Indian students are in multiracial schools. For whites, blacks, and Asians the multiracial experience reaches its highest level in the West. An extraordinary 52 percent of Western blacks and 51 percent of Western Asians attend these diverse schools. For Latinos, however, the multiracial experience is lower in the West (24%) than in all other regions and substantially higher in the Northeast (37 percent). The Northeast also has schools that are second only to the West in the exposure of black and Asian students to multiracial schools. The concentration of such schools in the West and Northeast is likely due in part to the concentration of Asian immigration in these areas as well as the extensive contact between black and Latino students in these areas.

An important reality about multiracial schools is that the basic multiracial contact may be between two or three minority groups and that they may still be highly segregated from whites. Very little systematic research has been done on the dynamics and effects of multiracial schools in terms of possible benefits or best ways to operate schools where there are substantial numbers of students from two or more disadvantaged groups attending the same school. Since many of the traditional benefits of desegregation result from moving students from high poverty to middle class schools with richer opportunities and networks, it is important to consider likely effects of combining two or more impoverished groups in the same multiracial school. There are large numbers of both blacks and Latinos in such schools in important immigration destinations where there are few whites left in the schools and these groups are inheriting the city. In the West, for example, blacks who are isolated from whites in minority schools are actually, on average, in schools with more Latinos than fellow African Americans.

NOTES AND QUESTIONS

1. How has desegregation for Latinos compared to that of African Americans? Has it been as effective? Are there factors that make the desegregation of Latinos more challenging? Are there factors that should make it easier?

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2. How does the segregation of Latinos vary by region?

3. Do multiracial schools comprised primarily of minority students present a new paradigm and warrant additional research, or are they just another iteration of segregation?

4. The report notes that Asians are the most integrated racial group. In contrast, whites tend to be the most racially isolated, although most do not see themselves as being isolated. Must this point be acknowledged to have a realistic chance for policy change?

C. ENGLISH LANGUAGE LEARNERS

1. Historical and Statutory Background

As indicated in the previous section, courts first addressed the rights of ELLs in the context of school segregation. Language status was, in many instances, a pretext for race and ethnic segregation, but because school districts raised language barriers as a defense for segregation, courts had to address the issue. Striking down the segregation of Latino students, the district court in Mendez v. Westminister School District of Orange County, 64 F. Supp. 544, 549 (S.D. Cal. 1946), wrote

the only tenable ground upon which segregation practices in the defendant school districts can be defended lies in the English language deficiencies of some of the children of Mexican ancestry as they enter elementary public school life as beginners. But even such situations do not justify the general and continuous segregation in separate schools of the children of Mexican ancestry from the rest of the elementary school population.…

The district court held that classroom segregation based on language was permissible where “credible examination by the appropriate school authority of each child whose capacity to learn is under consideration,” but a student’s ethnic trait or ancestry could not be part of the consideration. Id. at 550.

The issue left unanswered in the Mendez litigation was what instructional responsibilities, if any, a school district has to ELL students in the classroom. The prohibition against school building segregation based on language is relatively meaningless if schools are free to segregate ELL students in classrooms and have no responsibility to ensure those students are learning. The first major attempt to address this question came in 1968 when Congress passed the Bilingual Education Act as part of the Elementary and Secondary Education Act (ESEA). The Act provided federal funds to incentivize schools to implement bilingual education. 20 U.S.C. §880(b) (1970). While some expressed concerns that bilingual programs could become too costly and reinforce cultural isolation rather than integration, the wider political support for civil rights and cultural inclusiveness of the time provided political momentum for the Act and helped it avoid a292 significant controversy. Arnold H. Leibowitz, The Bilingual Education Act: A Legislative Analysis 9 (1980). With that said, the funding for bilingual education was still limited. John Strahinich, Ethnicity and Education: Bilingual Education Runs into Trouble, Boston Rev., Oct. 1981.

The next major step came in 1970 when the U.S. Department of Health, Education, and Welfare Office for Civil Rights (OCR) cited to Title VI of the Civil Rights Act of 1964 and its prohibition on discrimination based on race, color, or national origin as a source of rights for ELLs. OCR indicated that “Title VI compliance reviews [and investigations] have revealed a number of common practices which have the effect of denying equality of educational opportunity to Spanish-surnamed pupils [and] disadvantaged pupils from other national origin-minority groups.” Dep’t of Health, Educ., and Welfare Office for Civil Rights, Identification of Discrimination and Denial of Services on the Basis of National Origin, 35 Fed. Reg. 11595-03 (July 18, 1970). Whether these practices were intentionally discriminatory, deliberately indifferent, or just produced disparate impacts was of little import at the time. Pursuant to its authority under Title VI, the agency had enacted regulations that prohibited disparate impact or policies that have the effect of discriminating. On this basis, OCR directed school districts to

“take affirmative steps to rectify the language deficiency in order to open its instructional program to [ELL] students”;
refrain from “assign[ing] national origin-minority group students to classes for the mentally retarded [or] deny[ing them] access to college preparatory courses” based on English language skills or tests;
remedy any ability-grouping or tracking system for ELL students that “operate[s] as an educational dead-end or permanent track”; and
provide notice of school activities to ELL students’ parents in their native language when necessary.

Id.

In Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court took up these issues when Chinese students challenged San Francisco’s failure to provide any particularized instruction to address their limited English proficiency. The Court wrote:

[T]here is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum; for students who do not understand English are effectively foreclosed from any meaningful education.…Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired those basic [English] skills is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.

Id. at 566. The Court then quoted heavily from the 1970 OCR policy guidance and effectively adopted its standards as law.

When the Court subsequently held in University of California Regents v. Bakke, 438 U.S. 265 (1978), a non-ELL case, that Title VI prohibits only293 intentional discrimination, the Court indirectly called the viability of Lau’s holding into question because Lau was premised on the notion that Title VI prohibited disparate impact in addition to intentional discrimination. This issue, however, is largely moot because Congress passed the Equal Education Opportunities Act of 1974 and explicitly addressed districts’ obligation to ELL students. The Act mandated that schools and educational agencies “take appropriate action to overcome language barriers that impede equal participation by [their] students in [their] instructional programs.” 20 U.S.C. §1703(f) (1976). Since then, the EEOA has been the primary source of law governing the education of ELL students. The most definitive legal interpretation of the Act was issued by the Fifth Circuit in 1981 in Castaneda v. Pickard. The case articulated a three-prong standard for evaluating ELL programs under the EEOA. Courts and agencies have nearly uniformly followed the standard ever since.

2. The Castaneda Standard

Castaneda v. Pickard

648 F.2d 989 (5th Cir. 1981)

Plaintiffs, instituted this action against the Raymondville, Texas Independent School District (RISD) alleging that the district engaged in racial discrimination against Mexican-Americans which deprived the plaintiffs of rights secured to them by the fourteenth amendment and 42 U.S.C. §1983 (1976), Title VI of the Civil Rights Act of 1964, and the Equal Educational Opportunities Act of 1974. Specifically, plaintiffs charged that the school district unlawfully discriminated against them by failing to implement adequate bilingual education to overcome the linguistic barriers that impede the plaintiffs’ equal participation in the educational program of the district.

Raymondville is located in Willacy County, Texas. [B]y conservative estimate based on census data, 77% of the population of the county is Mexican-American and almost all of the remaining 23% is “Anglo.” The student population of RISD is about 85% Mexican-American.

Willacy County ranks 248th out of the 254 Texas counties in average family income. Approximately one-third of the population of Raymondville is composed of migrant farm workers. Three-quarters of the students in the Raymondville schools qualify for the federally funded free school lunch program. The district’s assessed property valuation places it among the lowest ten percent of all Texas counties in its per capita student expenditures.

The district operates five schools. Two campuses, L.C. Smith and Pittman, house students in kindergarten through fifth grade. The student body at L.C. Smith is virtually 100% Mexican-American; Pittman, which has almost twice as many students, has approximately 83% Mexican-American students. There is one junior high school, which has 87% Mexican-American students, and one high school, in which the enrollment is 80% Mexican-American.

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[I]

RISD currently operates a bilingual education program for all students in kindergarten through third grade. The language ability of each student entering the Raymondville program is assessed when he or she enters school. The language dominance test currently employed by the district is approved for this purpose by the [Texas Education Agency (TEA)]. The program of bilingual instruction offered students in the Raymondville schools has been developed with the assistance of expert consultants retained by the TEA and employs a group of materials developed by a regional educational center operated by the TEA. The articulated goal of the program is to teach students fundamental reading and writing skills in both Spanish and English by the end of third grade.

Although the program’s emphasis is on the development of language skills in the two languages, other cognitive and substantive areas are addressed, e. g., mathematics skills are taught and tested in Spanish as well as English during these years. All of the teachers employed in the bilingual education program of the district have met the minimum state requirements to teach bilingual classes. However, only about half of these teachers are Mexican-American and native Spanish speakers; the other teachers in the program have been certified to teach bilingual classes following a 100 hour course designed by TEA to give them a limited Spanish vocabulary (700 words) and an understanding of the theory and methods employed in bilingual programs. Teachers in the bilingual program are assisted by classroom aides, most of whom are fluent in Spanish.

RISD does not offer a formal program of bilingual education after the third grade. In grades 4 and 5, although classroom instruction is only in English, Spanish speaking teacher aides are used to assist students having language difficulties which may impair their ability to participate in classroom activities. For students in grades 4-12 having limited English proficiency or academic deficiencies in other areas, the RISD provides assistance in the form of a learning center operated at each school. This center provides a diagnostic/prescriptive program in which students’ particular academic deficiencies, whether in language or other areas, are identified and addressed by special remedial programs. Approximately 1,000 of the district’s students, almost one-third of the total enrollment, receive special assistance through small classes provided by these learning centers. The district also makes English as a Second Language classes and special tutoring in English available to all students in all grades; this program is especially designed to meet the needs of limited English speaking students who move into the district in grades above 3.

[II]

Plaintiffs claim that the bilingual education and language remediation programs offered by the Raymondville schools are educationally deficient and unsound and that RISD’s failure to alter and improve these programs places the district in violation of Title VI and the Equal Educational Opportunities Act. RISD’s program does not violate Title VI [for three reasons. First, the Lau Guidelines developed by the Department of HEW following the Supreme295 Court’s decision in Lau v. Nichols, upon which plaintiffs rely so heavily, do not purport to set the standard for assessing the sufficiency of a language program, but rather speak to the legal responsibilities of districts that are not providing any language assistance to students of limited English proficiency. Second, because RISD does have a language assistance program, it is not in violation of these guidelines. Third, because these guidelines “were not developed through the usual administrative procedures employed to draft administrative rules or regulations,” they are not “the sort of administrative document to which we customarily give great deference in our determinations of compliance with a statute.”]

We must [also] confess to serious doubts about the continuing vitality of the rationale of the Supreme Court’s opinion in Lau v. Nichols which gave rise to those guidelines. Lau was written prior to Washington v. Davis, in which the Court held that a discriminatory purpose must be shown to establish a violation of the Equal Protection Clause, and Univ. of California Regents v. Bakke, 438 U.S. 265 (1978), in which a majority of the court interpreted Title VI to be coextensive with the Equal Protection Clause. Whatever the deficiencies of the RISD’s program of language remediation may be, we do not think it can seriously be asserted that this program was intended or designed to discriminate against Mexican-American students in the district. Thus, we think it cannot be said that the arguable inadequacies of the program render it violative of Title VI.

Plaintiffs, however, also claim that the district’s current program is unlawful under §1703(f) of the EEOA which makes it unlawful for an educational agency to fail to take “appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” [W]e have very little legislative history from which to glean the Congressional intent behind the EEOA’s provisions. Thus, we shall adhere closely to the plain language of §1703(f) in defining the meaning of this provision. Unlike subsections (a) and (e) of §1703, §1703(f) does not contain language that explicitly incorporates an intent requirement nor, like §1703(d) which we construed above, does this subsection employ words such as “discrimination” whose legal definition has been understood to incorporate an intent requirement. [I]n Morales v. Shannon, we assumed that the failure of an educational agency to undertake appropriate efforts to remedy the language deficiencies of its students, regardless of whether such a failure is motivated by an intent to discriminate against those students, would violate §1703(f) and we think that such a construction of that subsection is most consistent with the plain meaning of the language employed in §1703(f). Thus, the essential holding of Lau, i.e., that schools are not free to ignore the need of limited English speaking children for language assistance to enable them to participate in the instructional program of the district, has now been legislated by Congress, acting pursuant to its power to enforce the fourteenth amendment. The difficult question presented by plaintiffs’ challenge to the current language remediation programs in RISD is really whether Congress in enacting §1703(f) intended to go beyond the essential requirement of Lau, that the schools do something, and impose, through the use of the term “appropriate action” a more specific obligation on state and local educational authorities.

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We note that although Congress enacted both the Biligual [sic] Education Act and the EEOA as part of the 1974 amendments to the Elementary and Secondary Education Act, Congress, in describing the remedial obligation it sought to impose on the states in the EEOA, did not specify that a state must provide a program of “bilingual education” to all limited English speaking students. We think Congress’ use of the less specific term, “appropriate action,” rather than “biligual [sic] education,” indicates that Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing programs and techniques to meet their obligations under the EEOA. However, by including an obligation to address the problem of language barriers in the EEOA and granting limited English speaking students a private right of action to enforce that obligation in §1706, Congress also must have intended to insure that schools made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students and deliberately placed on federal courts the difficult responsibility of determining whether that obligation had been met.

Congress has provided us with almost no guidance, in the form of text or legislative history, to assist us in determining whether a school district’s language remediation efforts are “appropriate.” Thus we find ourselves confronted with a type of task which federal courts are ill-equipped to perform and which we are often criticized for undertaking prescribing substantive standards and policies for institutions whose governance is properly reserved to other levels and branches of our government (i.e., state and local educational agencies). Confronted, reluctantly, with this type of task, we have attempted to devise a mode of analysis which will permit ourselves and the lower courts to fulfill the responsibility Congress has assigned to us without unduly substituting our educational values for the educational and political decisions reserved to state or local school authorities or the expert knowledge of educators.

[III]

In a case in which the appropriateness of a particular school system’s language remediation program is challenged under §1703(f), we believe that the responsibility of the federal court is threefold. First, the court must examine carefully the evidence the record contains concerning the soundness of the educational theory or principles upon which the challenged program is based. This, of course, is not to be done with any eye toward discerning the relative merits of sound but competing bodies of expert educational opinion, for choosing between sound but competing theories is properly left to the educators and public officials charged with responsibility for directing the educational policy of a school system. The state of the art in the area of language remediation may well be such that respected authorities legitimately differ as to the best type of educational program for limited English speaking students and we do not believe that Congress in enacting §1703(f) intended to make the resolution of these differences the province of federal courts. The court’s responsibility, insofar as educational theory is concerned, is only to ascertain that a school system is pursuing a program informed by an educational theory recognized as sound297 by some experts in the field or, at least, deemed a legitimate experimental strategy.

The court’s second inquiry would be whether the programs and practices actually used by a school system are reasonably calculated to implement effectively the educational theory adopted by the school. We do not believe that it may fairly be said that a school system is taking appropriate action to remedy language barriers if, despite the adoption of a promising theory, the system fails to follow through with practices, resources and personnel necessary to transform the theory into reality.

Finally, a determination that a school system has adopted a sound program for alleviating the language barriers impeding the educational progress of some of its students and made bona fide efforts to make the program work does not necessarily end the court’s inquiry. If a school’s program fails, after being employed for a period of time sufficient to give the plan a legitimate trial, to produce results indicating that the language barriers confronting students are actually being overcome, that program may, at that point, no longer constitute appropriate action as far as that school is concerned. We do not believe Congress intended that under §1703(f) a school would be free to persist in a policy which, although it may have been “appropriate” when adopted, in the sense that there were sound expectations for success and bona fide efforts to make the program work, has, in practice, proved a failure.

In this case, the plaintiffs’ challenge to the appropriateness of the RISD’s efforts does not rest on an argument over the soundness of the educational policy being pursued by the district, but rather on the alleged inadequacy of the program actually implemented by the district. Plaintiffs contend that in three areas essential to the adequacy of a bilingual program—curriculum, staff and testing—Raymondville falls short. Plaintiffs contend that although RISD purports to offer a bilingual education program in grades K-3, the district’s curriculum actually overemphasizes the development of reading and writing skills in English to the detriment of education in other areas such as mathematics and science, and that, as a result, children whose first language was Spanish emerge from the bilingual education program behind their classmates in these other areas. The record in this case does not support plaintiffs’ allegation that the educational program for predominantly Spanish speaking students in grades K-3 provides significantly less attention to these other areas than does the curriculum used in the English language dominant classrooms. [While it may be true that “Spanish language dominant children spend” more time “on language development” in classes devoted to “music, creative writing and physical education” than children in other rooms, they] spend almost exactly the same amount of classroom time on math, science and social studies as do their counterparts in the predominantly English speaking classrooms.

Even if we accept this allegation as true, however, we do not think that a school system which provides limited English speaking students with a curriculum, during the early part of their school career, which has, as its primary objective, the development of literacy in English, has failed to fulfill its obligations under §1703(f), even if the result of such a program is an interim sacrifice of learning in other areas during this period. The language of §1703(f) speaks in298 terms of taking action “to overcome language barriers” which impede the “equal participation” of limited English speaking children in the regular instructional program. We believe the statute clearly contemplates that provision of a program placing primary emphasis on the development of English language skills would constitute “appropriate action.”

Limited English speaking students entering school face a task not encountered by students who are already proficient in English. Since the number of hours in any school day is limited, some of the time which limited English speaking children will spend learning English may be devoted to other subjects by students who entered school already proficient in English. In order to be able ultimately to participate equally with the students who entered school with an English language background, the limited English speaking students will have to acquire both English language proficiency and to recoup any deficits which they may incur in other areas of the curriculum as a result of this extra expenditure of time on English language development. We understand §1703(f) to impose on educational agencies not only an obligation to overcome the direct obstacle to learning which the language barrier itself poses, but also a duty to provide limited English speaking ability students with assistance in other areas of the curriculum where their equal participation may be impaired because of deficits incurred during participation in an agency’s language remediation program. If no remedial action is taken to overcome the academic deficits that limited English speaking students may incur during a period of intensive language training, then the language barrier, although itself remedied, might, nevertheless, pose a lingering and indirect impediment to these students’ equal participation in the regular instructional program. We also believe, however, that §1703(f) leaves schools free to determine whether they wish to discharge these obligations simultaneously, by implementing a program designed to keep limited English speaking students at grade level in other areas of the curriculum by providing instruction in their native language at the same time that an English language development effort is pursued, or to address these problems in sequence, by focusing first on the development of English language skills and then later providing students with compensatory and supplemental education to remedy deficiencies. In short, §1703(f) leaves schools free to determine the sequence and manner in which limited English speaking students tackle this dual challenge so long as the schools design programs which are reasonably calculated to enable these students to attain parity of participation in the standard instructional program within a reasonable length of time. Therefore, we disagree with plaintiffs’ assertion that a school system which chooses to focus first on English language development and later provides students with an intensive remedial program to help them catch up in other areas of the curriculum has failed to fulfill its statutory obligation under §1703(f).

Although we therefore find no merit in the plaintiffs’ [challenge to] the emphasis the curriculum places on English language development in the primary grades, we are more troubled by the plaintiffs’ allegations that the district’s implementation of the program has been severely deficient in the area of preparing its teachers for bilingual education. Although the plaintiffs raised this issue below and introduced evidence addressed to it, the district court made no299 findings on the adequacy of the teacher training program employed by RISD. We begin by noting that any school district that chooses to fulfill its obligations under §1703 by means of a bilingual education program has undertaken a responsibility to provide teachers who are able competently to teach in such a program. The record in this case indicates that some of the teachers employed in the RISD bilingual program have a very limited command of Spanish, despite completion of the TEA course. Plaintiffs’ expert witness, Dr. Jose Cardenas, was one of the bilingual educators who participated in the original design of the 100 hour continuing education course to prepare them to teach bilingual classes. He testified that a subsequent evaluation of the program showed that although it was effective in introducing teachers to the methodology of bilingual education, the course was “a dismal failure in the development of sufficient proficiency in a language other than English to qualify the people for teaching bilingual programs.” [T]estimony of those involved in the RISD’s program [also] suggested that despite completion of the 100 hour course, some of the district’s English speaking teachers were inadequately prepared to teach in a bilingual classroom. Mr. Inez Ibarra, who was employed by the district as bilingual supervisor, testified in the administrative hearing that he had observed the teachers in the bilingual program and that some of the teachers had difficulty communicating in Spanish and that there were teachers in the program who taught almost exclusively in English, using Spanish, at most, one day per week. He also described the evaluation program used to determine the Spanish proficiency of the teachers at the end of the 100 hour course. Teachers were required to write a paragraph in Spanish. Since in completing this task, they were permitted to use a Spanish-English dictionary, Ibarra acknowledged that this was not a valid measure of their Spanish vocabulary. Teachers also read orally from a Spanish language text and answered oral questions. There was no formal grading of the examination; the certification committee had no guide to measure the Spanish language vocabulary of the teachers based on their performance on the exam. Thus, it may well have been impossible for the committee to determine whether the teachers had mastered even the 700 word vocabulary the TEA had deemed the minimum to enable a teacher to work effectively in a bilingual elementary classroom. Following the examination, the committee would have an informal discussion among themselves and decide whether or not the teacher was qualified. Mr. Ibarra testified that the certification committee had approved some teachers who were in need of more training “much more than what they were given.”

The record thus raises serious doubts about the actual language competency of the teachers employed in bilingual classrooms and about the degree to which the district is making a genuine effort to assess and improve the qualifications of its bilingual teachers. As in any educational program, qualified teachers are a critical component of the success of a language remediation program. A bilingual education program, however sound in theory, is clearly unlikely to have a significant impact on language barriers, if the teachers charged with educating children are termed “qualified” despite the fact that they operate under their own unremedied language disability. The use of Spanish speaking aides may be an appropriate interim measure, but such aides cannot, RISD300 acknowledges, take the place of qualified bilingual teachers. The record in this case strongly suggests that the efforts RISD has made to overcome the language barriers confronting many of the teachers are inadequate. On this record, we think a finding to the contrary would be clearly erroneous. Nor can there be any question that deficiencies in the in-service training of teachers for bilingual classrooms seriously undermine the promise of the district’s bilingual education program. Until deficiencies in this aspect of the program’s implementation are remedied, we do not think RISD can be deemed to be taking “appropriate action” to overcome the language disabilities of its students. [W]e are by no means suggesting that teachers already employed by the district should be replaced or that the district is limited to hiring only teachers who are already qualified to teach in a bilingual program. We are requiring only that RISD undertake further measures to improve the ability of any teacher, whether now or hereafter employed, to teach effectively in a bilingual classroom.

The third specific area in which plaintiffs claim that RISD programs are seriously deficient is in the testing and evaluation of students having limited English proficiency. Plaintiffs claim first that the language dominance placement test used to evaluate students entering Raymondville schools is inadequate. [B]y the time of the trial in this civil suit RISD had adopted a test approved by TEA. None of plaintiffs’ expert witnesses testified that this test was an inappropriate one. Thus, we do not think there is any reason to believe that the district is deficient in the area of initial evaluation of students entering the bilingual program.

A more difficult question is whether the testing RISD employs to measure the progress of students is adequate. [P]roper testing and evaluation is essential in determining the progress of students involved in a bilingual program and ultimately, in evaluating the program itself. In their brief, plaintiffs contend that RISD’s testing program is inadequate because the limited English speaking students in the bilingual program are not tested in their own language to determine their progress in areas of the curriculum other than English language literacy skills. Although during the bilingual program Spanish speaking students receive much of their instruction in these other areas in the Spanish language, the achievement level of these students is tested, in part, by the use of standardized English language achievement tests. No standardized Spanish language tests are used. Plaintiffs contend that testing the achievement levels of children, who are admittedly not yet literate in English and are receiving instruction in another language, through the use of an English language achievement test, does not meaningfully assess their achievement, any more than it does their ability, a contention with which we can scarcely disagree.

Valid testing of students’ progress in these areas is, we believe, essential to measure the adequacy of a language remediation program. The progress of limited English speaking students in these other areas of the curriculum must be measured by means of a standardized test in their own language because no other device is adequate to determine their progress vis-à-vis that of their English speaking counterparts. Although, we do not believe these students must necessarily be continuously maintained at grade level in other areas of instruction during the period in which they are mastering English, these301 students cannot be permitted to incur irreparable academic deficits during this period. Only by measuring the actual progress of students in these areas can it be determined that such irremediable deficiencies are not being incurred.

Finally plaintiffs contend that test results indicate that the limited English speaking students who participate in the district’s bilingual education program do not reach a parity of achievement with students who entered school already proficient in English at any time throughout the elementary grades and that since the district’s language program has failed to establish such parity, it cannot be deemed “appropriate action” under §1703(f). Although this question was raised at the district court level, no findings were made on this claim. While under some circumstances it may be proper for a court to examine the achievement scores of students involved in a language remediation program in order to determine whether this group appears on the whole to attain parity of participation with other students, we do not think that such an inquiry is, as yet, appropriate with regard to RISD. Such an inquiry may become proper after the inadequacies in the implementation of the RISD’s program, which we have identified, have been corrected and the program has operated with the benefit of these improvements for a period of time sufficient to expect meaningful results.

Because an effective language remediation program is essential to the education of many students in Raymondville, we think it imperative that the district court, as soon as possible, conduct a hearing to identify the precise causes of the language deficiencies affecting some of the RISD teachers and to establish a time table for the parties to alleviate these deficiencies. The district court should also assure that RISD takes whatever steps are necessary to acquire validated Spanish language achievement tests for administration to students in the bilingual program at an appropriate time during the 1981-82 academic year.

NOTES AND QUESTIONS

1. What exactly must a district do to comply with the EEOA? What limits, if any, exist on districts’ discretion in adopting an educational program to assist ELLs? Given that the choice of an educational program is a pedagogical decision, would it be appropriate for courts to second-guess districts? Is there any way the courts could exercise review of these decisions without actually “second-guessing” districts? Scholars have been critical of the level of deference this prong affords. See, e.g., Derek W. Black, Civil Rights, Charter Schools, and Lessons to Be Learned, 64 Fla. L. Rev. 1723, 1782 (2012); Eric Haas, The Equal Educational Opportunity Act 30 Years Later: Time to Revisit “Appropriate Action” for Assisting English Language Learners, 34 J.L. & Educ. 361 (2005); Claire Raj, The Gap Between Rights and Reality: The Intersection of Language, Disability, and Educational Opportunity, 87 Temp. L. Rev. 283, 287-290 (2015).

2. The second prong of Castaneda requires a showing that the district has appropriately implemented its chosen program. In what respects did this district fail this prong?

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3. The final prong of Castaneda requires a showing that “the language barriers confronting students are actually being overcome.” Here the court criticizes the district’s testing methods but indicates the district has a period of years in which to show that its program is effective in this respect. After this period, how would a plaintiff or school district meet this burden? Who are these students to be gauged against: themselves, other students in the school, or ELL students at other schools?

4. Does equal educational opportunity require that ELL students be moved to parity with non-ELL students or only that they overcome language barriers so that they can then access English instruction equally with other students? Can these two concepts be separated? Given that ELL status will disadvantage ELL students until they overcome their initial language barriers, does equal opportunity require that they then be given additional remedial instruction afterward so that they are achieving at a level that is consistent with their academic capacities? Is that asking too much of schools?

5. On the one hand, the court writes in a commanding tone indicating that “if no remedial action is taken to overcome the academic deficits that limited English speaking students may incur during a period of intensive language training, then the language barrier, although itself remedied, might, nevertheless, pose a lingering and indirect impediment to these students’ equal participation in the regular instructional program.” But on the other hand, the court sets no short-term benchmarks for assuring that districts comply with these requirements. At worst, the districts have a few years to implement their program, after which the damage could already be done. Is this a necessary evil given the need to respect local decision making, or does it afford districts too much latitude? Are there any reasonable benchmarks that Congress and/or the courts might set in the first instance?

6. Does this case set high, low, or average expectations for ELL programs and the achievement of students within them? Are these expectations consistent with the purpose and language of the EEOA?

7. Is there a threshold number of students in need of language assistance that necessitates a programmatic response by a school? At least one lower court has indicated that programmatic responses are required regardless of the number of ELL students. Heavy Runner v. Bremner, 522 F. Supp. 162 (D. Mont. 1981) (remedial action required if even one student is denied equal educational opportunity).

8. Providing services to ELL students can also intersect with school desegregation. For instance, the United States originally brought suit against the state of Texas for the segregation of nine all-black school districts. United States v. Texas, 321 F. Supp. 1043 (E.D. Tex. 1970). Two years later, Mexican-American students intervened in the litigation, asserting a denial of equal educational opportunity. See United States v. Texas, 601 F.3d 354, 357 (5th Cir. 2010) (detailing the case’s procedural history). In subsequent years, the case morphed almost entirely into one addressing whether the state was meeting its obligations under the EEOA. Id. at 358.

9. The Castaneda analysis focuses almost exclusively on school districts’ actions, but property poor districts may lack the resources to unilaterally303 improve their ELL programs. In a state with a regressive funding system, a poor district’s noncompliance with EEOA may be as much a product of state fiscal policy as local decisions. Can a court fairly evaluate a district’s ELL program under the EEOA without also considering the district’s fiscal capacity? To the extent funding is relevant, should the state be a codefendant in these cases? Do underfunded ELL programs also implicate state constitutional rights to education? State courts and school finance scholars have rarely devoted distinct independent analysis to ELL funding. The most notable analysis of ELL funding is in Horne v. Flores, 557 U.S. 433 (2009), the discussion and reprint of which appear later in this chapter.

The first prong of the Castaneda standard largely defers to local discretion regarding the soundness of a school’s language program. By local discretion, however, courts mean the local school district and the state, as opposed to the federal government or courts. Castaneda just so happens to involve a challenge to a local district’s actions, but other cases have challenged the failings of state educational agencies. Courts have held that the affirmative duty to assist ELL students in overcoming language barriers extends to state education agencies as well. See, e.g., Gomez v. Ill. State Bd. of Educ., 811 F.2d 1030 (7th Cir. 1987); United States v. Texas, 680 F.2d 356, 371-372 (5th Cir. 1982); Idaho Migrant Council v. Bd. of Educ., 647 F.2d 69 (9th Cir. 1981). Thus, states should exercise control over and provide assistance to local districts in carrying out and structuring their ELL programs.

The ELL program that the court in Castaneda struck down was, in many respects, minimal or rudimentary. In contrast, the next case involves a district with a more robust program for providing specialized services to ELL students. The fact that the district had developed a rather extensive and detailed language program made a significant difference in the legal analysis. Regardless of the substantive efficacy of the program, a detailed and established program implicitly represents serious efforts by a school district, which likely count in its favor regardless of their efficacy. As you read the case, compare it to the previous one and consider whether the practical result of the EEOA is to require positive results for ELL students or only good faith efforts by school districts toward that end.

Teresa P. v. Berkeley Unified School District

724 F. Supp. 698 (N.D. Cal. 1989)

[The District’s 571 LEP students speak approximately 38 languages other than English. About 40 percent of the Limited English Proficient (LEP) students speak Spanish, but the rest of the languages account for only small percentages304 and many are spoken by only 1 to 3 students in total. Moreover, these students do not all attend the same schools, but rather are spread across 17 elementary schools, 2 junior high schools, and 1 high school.

Parents fill out surveys to identify any languages other than English that are spoken at home and the district subsequently tests the oral and written English proficiency of students who speak languages other than English at home through a battery of different tests, some of which have been evaluated as effective by outside experts.

“Students identified by the BUSD [Berkeley Unified School District] as LEP students are placed in the District’s program of special language services. Parents are notified of such placement.…The parents are given the option to withdraw their child from the program [or] transfe[r] their child from one type of special language services program to another where choices are available based on the language needs of the individual child. Parents also may withdraw their child from all participation in special language services.”

“The District has adopted two types of special language services: (1) a Spanish bilingual program; and (2) ESL [English as a second language] programs in three separate forms.” The District offers bilingual education in its elementary schools. Students are taught to read and write in Spanish before they are taught to read and write in English, but the bilingual program emphasizes English language development. Its bilingual teachers are fully credentialed bilingual teachers. After examining its program in 1984, the District “concluded that the program did not produce satisfactory English and academic results” and modified it to promote English proficiency as quickly as possible.

The District’s ESL program provides special language services to all LEP students who are not in the Spanish bilingual program. The ESL program delivers instruction in English, and its curriculum focuses on rapid development of English proficiency. The program provides both instruction in the English language and simultaneous academic instruction. “All regular classroom teachers who teach LEP students are scheduled to receive training in Sheltered English methods during the 1988-89 academic year.” The district also employs ESL resource teachers who receive additional training and must meet higher certification requirements.

ESL students attend class with non-ESL students to avoid in-school segregation. LEP students who need additional help are given help on a “pull-out” basis individually or in small groups. To coordinate ESL and regular instruction, the District develops an individual learning plan for each LEP student. All ESL students receive extensive tutoring, which is offered in students’ native tongue when necessary and possible (but tutoring in native language is not possible for all languages). The District’s techniques are based on generally accepted educational theories.

The District also has several other supplementary and compensatory programs “to assist low achieving minority students, a category of students that includes LEP students as well as others.”

“LEP students are tested annually for oral and written proficiency in English.…[T]o be eligible to exit the District’s programs of special language services, a LEP student must score at least at the 38th percentile level [in California’s Test of Basic Skills (CTBS), at the ‘fluent’ level on” a written language305 proficiency test and pass an oral exam. “[W]hen a LEP student has been receiving language services for more than 3 years, the achievement test score criterion may be relaxed if the student’s teacher and principal so recommend, with District supervisor approval.”

After the District authorizes a student to exit the language program, it monitors the student’s progress for an additional six months. If the student does not make satisfactory progress, staff meet to determine whether to furnish the student language services again.

In most grades, the math, reading, and English report card scores for LEP students were similar to those of non-LEP students. During the course of one year, LEP students increased their English proficiency by an average of 1.41 points on a scale of 1 through 7. “CTBS scores 2 years before reclassification compared to scores two years after reclassification of former LEP students…went from the middle 40s up to the low 70s [in English language], and…from the middle 30s up to the middle 60s [in reading]. Math scores went from 60 to 70 up to 70 to 80.” Berkeley’s LEP students score at levels similar to those of LEP students in Fremont and San Jose, both of which are regarded as having effective LEP programs. Based on standardized test scores, Berkeley’s LEP students “are learning at rates equal to, and in some cases greater than, their counterparts, countywide and statewide.” “A comparison of the academic achievement of LEP students in the ESL-ILP and the Spanish bilingual programs shows no significant difference in achievement.” BUSD developed its LEP program in conjunction with parental input. Most Hispanic parents preferred a bilingual language program, while most Asian parents preferred the ESL program “because it represented the fastest way to learn English.” Most parents of LEP students expressed satisfaction with the education their children receive in the District.]

1. Legal Framework

Plaintiffs[’] first cause of action is based on section 1703(f) of the EEOA. The EEOA does not define appropriate action nor does it provide criteria for a court to evaluate whether or not a school district has taken “appropriate action.” The clearest statement of this requirement is set forth in Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981). Castaneda held that in evaluating a school system’s language remediation program, a court must conduct the following three-prong analysis. First, the court must determine whether the school district is pursuing a program “informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy.” Second, the court must establish whether “the programs and practices actually used by the school system are reasonably calculated to implement effectively the educational theory adopted by the school.” Third, the court must determine whether the school’s program, although premised on sound educational theory and effectively implemented, “produces results indicating that the language barriers confronting students are actually being overcome.” Several other courts have adopted this approach. Although this Court is not bound by the Castaneda three-prong approach, the decision does provide the Court with useful criteria to be used in the review of appropriate action issues.

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2. Discussion

Plaintiffs contend that the BUSD has failed to take appropriate action to overcome the language barriers faced by its LEP students. Specifically, plaintiffs challenge the BUSDs alternative to bilingual education, which is an ESL-ILP program at the elementary level and ESL classes and a Sheltered English program at the secondary level. They claim that even if the program rests on a pedagogically sound basis its implementation violates the appropriate action standard of the EEOA. Plaintiffs argue that by failing to provide qualified teachers, sufficient supporting resources, and necessary monitoring systems, the BUSD has violated the EEOA. Plaintiffs also argue that the procedures utilized by the BUSD to identify, place, and exit students from the special language services program, violate the EEOA.

a. Sound Educational Theory

The EEOA does not require school districts to adopt a specific educational theory or implement an ideal academic program. That Congress utilized the term “appropriate action,” rather than “bilingual education,” indicates that Congress intended to leave educational authorities substantial latitude in formulating programs to meet their EEOA obligations.

Given the diversity of opinion in the education field concerning which theoretical and programmatic approach is sound, it is fortunate that this Court is not charged with the difficult task of establishing the ideal program or choosing between competing theories. Instead, this Court is charged solely with the responsibility of determining whether the BUSD’s program is informed by an educational theory which some experts recognize as sound. After reviewing the evidence presented in this case, this Court concludes that the plaintiffs have not met their burden to show that the BUSD program is not pedagogically sound. In fact, the evidence shows that the educational theories, upon which the BUSD’s programs are grounded, are manifestly as sound as any theory identified by plaintiffs.

Although plaintiffs advocate a program that emphasizes native tongue instruction, they introduced no objective evidence demonstrating that the efficacy of this approach, whatever it may be, for teaching LEP students English, or helping them succeed in a mainstream environment, renders the alternative programs preferred by BUSD pedagogically unsound.

b. Implementation of the Educational Program

(1) Effective Teachers

Plaintiffs maintain that the training of the bilingual teacher and tutor is crucial to the proper implementation of a language remediation program. Plaintiffs argue that by failing to hire teachers and tutors qualified to provide the highly technical and specialized instruction required by the ESL approach, the BUSD has failed to implement a sound educational program.

Plaintiffs contend that in order to implement its language remediation program, BUSDs teachers must have skills based on academic course work in ESL methodology, the developmental needs of LEP students, language307 proficiency assessment procedures, applied linguistics, general language acquisition, and second language acquisition. Plaintiffs contend that the BUSD should assure this competence by hiring teachers with a language development specialist credential, a bilingual-crosscultural certificate of proficiency or a bilingual-crosscultural specialist credential. Plaintiffs further argue that in order to effectively deliver ESL instruction, the tutors and paraprofessionals hired by the BUSD must also possess a certificate or credential indicating that they possess the necessary skills and educational background.

By including in the EEOA the obligation to remove language barriers through appropriate action, Congress intended to ensure that school districts make “genuine and good faith efforts, consistent with local circumstances and resources,” to remedy the language deficiencies of their LEP students. Castaneda, 648 F.2d at 1009. To this end, a school district that chooses to fulfill its EEOA obligations by means of a bilingual program must make good faith efforts to provide teachers competent to teach such a program. However, as Castaneda makes clear, the question of whether a school district has in good faith attempted to implement such a program must be tested against reality.

Based on the record in this case, this Court concludes that plaintiffs have failed to meet their burden to show that the actual programs and practices are not reasonably calculated to effectively implement the educational theories upon which an overall program is premised. The BUSD has not violated the EEOA by a failed implementation effort.

The threshold question is, of course, whether or not the credentialed teachers contemplated by plaintiffs are in fact available to a school district who seeks them out. The evidence at trial did not fully resolve this issue but did suggest that it is highly unlikely that the BUSD could fill all necessary positions with fully credentialed teachers in the basic language groups and that it is impossible to cover all languages represented in the BUSD school population. The record in this case established that the mix of teachers newly hired or reassigned to language remediation responsibilities by the BUSD, included both credentialed and non-credentialed teachers. Those without credentials were assessed as to relevant bilingual skills, required to participate in district level training sessions, and to make substantial progress toward completion of requirements for credentials as a condition of employment. The situation with tutors was much the same. The BUSD looks to college graduates or students with two years college at a minimum, finds some with native language ability, and provides relevant district level training to all.

The other major assumption of plaintiffs in this area is that it is necessary to hold language-specific credentials in order to deliver remediation programs which do not violate the EEOA. The evidence in the record does not support this assumption. Rather, it tends to show an alternative assumption: that good teachers are good teachers no matter what the educational challenge may be. There is in fact evidence in the record showing that there is no difference in achievement success of LEP students in the BUSD between students with credentialed teachers and students who do not have credentialed teachers.

Finally, any review of the actual complement of teachers and the support provided them must be done in light of the resources actually available to the308 BUSD. The fact that the BUSD was nearly bankrupt in 1986 simply underscores the reality that the BUSD does not have unlimited funds and that program delivery by the BUSD in all areas is conditioned upon that fact.

Even though funds are limited, the evidence in this case shows that the BUSD has committed significant funds to language remediation program delivery and further that the actual delivery of those programs as to qualified teachers, supporting resources, and program monitoring, does not violate the EEOA on grounds of ineffective implementation.

c. Success of the Program

The third prong of the Castaneda test involves consideration of the program’s results. Neither the EEOA nor the Castaneda court explains how it is that a federal court is to judge the results of a school district’s language remediation program. Castaneda simply indicated that the program should “produce results indicating that the language barriers confronting students are actually being overcome.”

Measuring the success or failure of educational programs is one of the great challenges that faces our educators. It is surely beyond the competence of this Court to fashion its own measure of academic achievement, and the Court will necessarily defer to the measuring devices already used by the school system.

In this case, [standardized test scores], as well as the classroom grades of the BUSD’s LEP students, point to the effectiveness of the program in teaching English to LEP students and in contributing to their academic achievement. These scores show that the BUSD’s LEP students are learning at rates equal to or higher than their counterparts in California. LEP students in the BUSD have a record of achievement which is the same or better than the record of LEP students in schools identified by plaintiffs’ experts as having effective language remediation programs. Extremely strong attendance patterns provide further proof that LEP students are fully participating in the BUSD’s educational program.

Recognizing the difficulties inherent in measurement it is nevertheless true that the best evidence of a sound and effectively implemented program lies in the results that it achieves. The overwhelming weight of evidence in this case establishes that the special language programs of the BUSD assure equal educational opportunity for LEP students and are effective in removing the language barriers faced by the LEP students.

Accordingly, this Court concludes that plaintiffs have failed to establish a violation of section 1703(f) of the EEOA.

NOTES AND QUESTIONS

1. What steps does Berkeley take to identify, evaluate, provide services to, and promote students with language needs? Is Berkeley a model district in comparison to the one at issue in Castaneda or just more sophisticated in adopting rules and regulations?

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2. What does “reasonably calculated” to effectively implement the educational theory mean? Is this court’s application more permissive than Castaneda? Does this court implicitly adopt practicality concerns as a defense for school districts?

3. The court refuses to fault the school district for using uncredentialed teachers to instruct LEP students because those students’ achievement was on par with those in classrooms with credentialed teachers. Does this mean districts are free to implement language programs as they see fit so long as they produce results? Does this collapse the Castaneda standard into a single inquiry? Did not Castaneda strike down the program based on uncredentialed teachers? What do the facts of this case suggest about the availability of ELL teachers?

4. The court indicates that plaintiffs failed to carry their burden of showing the program was ineffective in its implementation or results. Given that districts have an affirmative duty to assist students in overcoming language barriers, should the burden of proof rest with plaintiffs or school districts?

5. What role, if any, should cost play in assessing program effectiveness? Does the fact that the district was nearly bankrupt resolve the question of its good faith efforts to implement the program? Would you want to know more about the district’s finances and how it was using them?

6. If LEP students are achieving so well in Berkeley, why are they suing the district? Does the court potentially overstate the effectiveness of the program here, or is something other than student achievement driving the litigation?

7. Is it possible that most of California’s schools were failing to provide appropriate educational services for LEP students? If so, is it fair to conclude the Berkeley’s comparable, and sometimes higher, achievement is indicative of an effective program? Berkeley is, as a general matter, one of the highest-achieving districts in the state. Teresa P., 724 F. Supp. at 716. Should a court require that its LEP students also be among the highest achieving? In recent policy guidance, the U.S. Departments of Justice and Education wrote:

To assess whether an EL program is succeeding in overcoming language barriers within a reasonable period of time, school districts must consider accurate data that permit a comprehensive and reliable comparison of how EL students in the EL program, EL students who exited the program, and never-EL students are performing on criteria relevant to participation in the district’s educational programs over time.

Meaningful EL program evaluations include longitudinal data that compare performance in the core content areas (e.g., valid and reliable standardized tests in those areas), graduation, dropout, and retention data for EL students as they progress through the program, former EL students, and never-EL students. When evaluating the effectiveness of an EL program, the performance of EL students in the program and former EL students who exited the program should be compared to that of never-EL students. While the data need not demonstrate that current EL students perform at a level equal to their never-EL peers, a school district’s data should show that EL students are meeting exit criteria and are being exited from the program within a reasonable period of time, and that former EL students are participating meaningfully in classes without EL services and are performing comparably to their never-EL peers in the standard instructional program. To assess whether the EL program sufficiently prepared EL students for more demanding academic requirements in higher grades, the Departments expect districts to evaluate these data not only at the point that students exit EL services, but also over time.

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U.S. Department of Education & U.S. Department of Justice, Dear Colleague Letter: English Learner Students and Limited English Proficient Parents 35-36, Jan. 7, 2015, http://www2.ed.gov/about/offices/list/ocr/letters/colleagueel-201501.pdf.

8. The decision in Teresa P. does not appear to be an outlier in its willingness to excuse implementation failures. More recently, a district court went out of its way to excuse a Chicago district’s failures. It wrote that “no program of this size can be expected to be free of criticism or deficiencies” and “although plaintiffs have identified a number of problems and concerns about the ELL program as it existed prior to the close of discovery in 2009, the court finds that by that time the District had established and recognized programs in place to educate its non-English speaking students in its educational programs.” McFadden v. Bd. of Educ. for Illinois Sch. Dist. U-46, 984 F. Supp. 2d 882, 895-896 (N.D. Ill. 2013). As to deficiencies in teaching, the court simply indicated that “there is a national shortage of qualified ELL teachers.” Id. at 896. Unlike Berkeley, however, the court in McFadden did not reference any compelling evidence that the district’s program was producing positive outcomes notwithstanding its teacher implementation problems. The court in McFadden, relying on Teresa P., implied that a national teacher shortage alone was sufficient to excuse the district. The court was, likewise, dismissive of plaintiffs’ concerns that the district was failing to comply with an Illinois state regulation that required ELL classrooms to have fewer students than other classrooms. The problem here, of course, is that the state had chosen a method of implementing its Equal Educational Opportunities Act obligation and the district was failing to carry it out. Id. at 896.

9. On a slightly different theory, a state trial court ruled in favor of plaintiffs in California, finding that the state had failed to ensure equal educational opportunity for ELL students. The court’s finding, however, was largely premised on the state’s failure to respond to and address allegations that local districts were not properly implementing their language programs. Thus, the victory was more procedural than substantive for plaintiffs. That holding, nonetheless, led to a statewide settlement. Derek Black, California Settles English Language Learner Case, Promising to Implement Better Standards and Oversight, Education Law Prof Blog, Sept. 30, 2015, http://lawprofessors.typepad.com/education_law/2015/09/california-settles-english-language-learner-case-promising-to-implement-better-standards-and-oversig.html.

PROBLEM

The state board of education in your state is responsible for the educational policies and guidelines of its schools. Currently, the board’s regulations mandate that local school districts identify the number of ELL students within a given school district and classify these children according to the language in which they possess primary speaking ability. The regulations also mandate that districts administer an annual examination for determining the level of ELL students’ oral comprehension, speaking, reading, and writing of English. The board, however, does not mandate the specific methods or tests by which districts311 identify ELL students or the specific annual examination they must administer. The regulations further mandate that when the identification process at a particular school building identifies 20 or more ELL students who speak the same primary language, the local district is required to provide a transitional bilingual education program. But when the process discloses less than 20 such students, the board does not conduct any review or supervision of the existence or adequacy of whatever services a district might provide to ELL students.

Based on these regulations, local districts act with unlimited discretion in selecting methods for identifying ELL students. Some, by using their own methods, may be under-identifying the number of ELL students in their district, which would bring the number speaking the same language below 20 and avoid the regulatory requirement to provide transitional bilingual education. Across the state, local districts have been found to use as many as 23 different language proficiency tests, 11 standardized English tests, 7 standardized reading tests, and many formal and informal teacher-developed tests. Based on the changing status of students who transfer school districts, these tests have been shown to lead to inconsistent results across districts. The state board has taken no action to limit districts’ discretion.

A mother, who asserts that her son’s primary language is Spanish and that he is struggling academically, indicates his school has not identified her son as an ELL student and that it has identified only a total of 18 ELL students in his school building. Does she have a claim against the state and/or the district?

3. Choice of Language Programs and Bilingual Education

As Teresa P. demonstrates, districts are free to choose the specific language program that they wish to implement. In Berkeley, the district adopted bilingual education and an ESL program taught exclusively in English, so as to accommodate differing parental preferences. Most districts, however, do not have that luxury, which led to heated debates over bilingual programs at every level of government and education.

Bilingual programs expanded throughout the 1970s following the passage of the Bilingual Education Act in 1968. Kristi L. Bowman, Pursuing Educational Opportunities for Latino/a Students, 88 N.C. L. Rev. 911, 926 (2010). The expansion was also accompanied by an increased focus on effectiveness. When Congress considered amendments to the Bilingual Education Act in 1977, one of the most influential studies was that of the American Institute for Research. The study concluded:

1) On English tests, students in bilingual education programs obtained slightly lower scores than comparable students in regular programs; 2) on mathematics tests, students in bilingual education programs performed somewhat better than comparable students in regular programs; 3) there was no significant difference in the attitudes toward school of children in bilingual education programs and regular programs; and 4) the ability of students in bilingual education programs to read Spanish did improve significantly.

Rachel F. Moran, The Politics of Discretion, 76 Cal. L. Rev. 1249, 1284 (1988). Many researchers highly criticized the study’s findings, but Congress312 nonetheless afforded the study significant weight. In addition, other evidence suggested that local educators and researchers might use the funds to pursue long-term goals of bilingualism and biculturalism, which Congress believed was contrary to its legislative intent. Id. at 1289. Thus, the 1978 amendments to the Act granted the commissioner of education the authority to terminate a district’s program funding. Other changes represented skepticism toward bilingual education’s effectiveness and implementation rather than efforts to strengthen it.

Support for bilingual education waned even further in the following decade. A 1981 report by the Office of Planning, Budget, and Evaluation challenged the empirical basis for the primary reliance on transitional bilingual education (TBE) programs. B. Birman & A. Ginsburg, Addressing the Needs of Language-Minority Children: Issues for Federal Policy (1981). It concluded that the educational problems experienced by language minority students were due to a combination of poverty and language; so bilingual education programs provided only a partial solution. Id. at xv-xvi. In 1982, Congress considered decreasing funding for bilingual education programs. Concerns were raised that bilingual programs were divisive in nature and part of a separatist movement that threatened American national identity. Some leaders attributed these concerns to anti-immigrant sentiment rather than reality. Regardless, the controversy surrounding bilingual education only grew, and federal funding for it fell. Congress’s new approach was to cap the length of time a student could spend in bilingual education, afford local authorities more flexibility in whether they offered bilingual education at all, and encourage and fund structured English immersion instead. This redirection in funding and eligibility made changes to the Bilingual Education Act largely unnecessary during the 1990s. When the No Child Left Behind Act was passed in 2001, the Act did not even reference bilingual education.

In the 1990s, some states went further than the federal government in undermining bilingual education; they took steps to end or abolish it. In 1998, after 30 years of offering bilingual education, 61 percent of Californians voted in favor of ending it. William Ryan, Note, The Unz Initiatives and the Abolition of Bilingual Education, 43 B.C. L. Rev. 487, 499 (2002). To add insult to injury, the initiative stated, “English is the language of economic opportunity, immigrant parents want their children to participate in the ‘American dream,’ and ‘public schools in California do a poor job of educating immigrant children.’” Id. (quoting Cal. Educ. Code §300 (1998)). In 2001, a similar, although slightly more aggressive and restrictive, measure passed in Arizona. Ryan, supra, at 505. The success of legislation in those states, along with immigration growth, fueled additional English-only education measures in Massachusetts and Colorado. The initiative passed in Massachusetts, but failed in Colorado. Lisa B. Ross, Note, Learning the Language: An Examination of Voter Initiatives to Make Language Education Policy, 82 N.Y.U. L. Rev. 1510, 1511 (2007).

In Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002), plaintiffs challenged California’s elimination of bilingual education as a denial of equal protection. Plaintiffs argued that the ban was motivated by ethnic discrimination and placed a special burden on minorities in their attempt to secure protection from unequal treatment in schools. The court, however, rejected this argument,313 finding there was no hidden discriminatory motivation for the initiative. Rather, the motivation was only to improve education. The court recognized that those supporting bilingual education were now placed at a unique political disadvantage, but again, the disadvantage was based on educational policy not race.

Does the fact that the efficacy of bilingual versus nonbilingual programs was in dispute have any bearing on the alleged discriminatory motive? The court suggested that, since there is no constitutional right to bilingual education, the plaintiffs were asking for special treatment. If bilingual education was necessary for an equal educational opportunity for some students, would adopting a policy prohibiting access to it amount to discrimination rather than a denial of special treatment? The court also indicated the state has a legitimate interest in promoting English instruction. Does the state have legitimate motive for banning bilingual instruction rather than leaving the issue to local educators?

4. Funding Language Programs

In 2009 in Horne v. Flores, the Court took up the relevance of funding in complying with the EEOA’s mandates. The Court cited heavily to Castaneda and did not question the validity of the Castaneda approach. Horne, however, arose under a relatively complex procedural posture. The precise issue before the Court was not whether funding is a relevant consideration under EEOA or whether funding has a causal effect on academic outcomes for ELL students, but whether the lower courts appropriately evaluated the state’s motion for reconsideration of a prior order mandating additional funding of ELL programs. Thus, the Court’s opinion broadly addresses the standard for evaluating motions for reconsideration based on changed circumstances in long-running education reform litigation. But in applying the standard to the facts in Horne, the Court also reconsidered the lower courts’ findings in regard to the role of funding in meeting an educational agency’s responsibilities under the EEOA.

Horne v. Flores

557 U.S. 433 (2009)

Justice Alito delivered the opinion of the Court.

In 1992, a group of students enrolled in the ELL program in Nogales filed suit on behalf of “all minority ‘at risk’ and limited English proficient children…now or hereafter, enrolled in the Nogales Unified School District…as well as their parents and guardians.” The plaintiffs sought a declaratory judgment holding that the State of Arizona, its Board of Education, and its Superintendent314 of Public Instruction (defendants) were violating the EEOA [Equal Educational Opportunities Act of 1974] by providing inadequate ELL instruction in Nogales.

The relevant portion of the EEOA states: “No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by…(f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”

By simply requiring a State “to take appropriate action to overcome language barriers” without specifying particular actions that a State must take, “Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA.” Castaneda v. Pickard, 648 F.2d 989, 1009 (5th Cir. 1981).

In January 2000, the District Court concluded that defendants were violating the EEOA because the amount of funding the State allocated for the special needs of ELL students was arbitrary and not related to the actual funding needed to cover the costs of ELL instruction in Nogales. Defendants did not appeal the District Court’s order.

In October 2000, the court ordered the State to “prepare a cost study to establish the proper appropriation to effectively implement” ELL programs. [Over the next five years, the court issued several orders and injunctions in regard to Nogales and statewide ELL programs. The state repeatedly failed to meet court-imposed deadlines. Eventually, in 2005, the court imposed daily escalating fines on the state legislature until it implemented a funding scheme that “bear[s] a rational relationship to the actual funding needed.”]

[The state did not appeal these orders and instead passed “HB 2064, which was designed to implement a permanent funding solution to the problems identified by the District Court in 2000. Among other things, HB 2064 increased ELL incremental funding with a 2-year per-student funding system that rationally relates funding available to the actual costs of all elements of ELL instruction.” The state then filed a Federal Rule of Civil Procedure 60(b)(5) motion for relief based on changed circumstances. The district court ignored this motion initially, ruling against the state on other grounds. But after an appeal, the Ninth Circuit remanded with specific instructions to consider the motion. The district court then denied the 60(b)(5) motion, found the state’s action insufficient to comply with its prior orders, and gave the state until the end of the legislative session to comply. The state failed to do so, and the district court again held the state in contempt.] Petitioners appealed.

The Court of Appeals affirmed. It acknowledged that Nogales had “made significant strides since 2000,” but concluded that the progress did not warrant Rule 60(b)(5) relief. [T]he Court of Appeals explained that relief would be315 appropriate only if petitioners had shown “either that there are no longer incremental costs associated with ELL programs in Arizona” or that Arizona had altered its funding model. The Court of Appeals concluded that petitioners had made neither showing, and it rejected petitioners’ other arguments.

III

Federal Rule of Civil Procedure 60(b)(5) permits a party to obtain relief from a judgment or order if, among other things, “applying [the judgment or order] prospectively is no longer equitable.” Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests, but the Rule provides a means by which a party can ask a court to modify or vacate a judgment or order if “a significant change either in factual conditions or in law” renders continued enforcement “detrimental to the public interest.” The party seeking relief bears the burden of establishing that changed circumstances warrant relief, but once a party carries this burden, a court abuses its discretion “when it refuses to modify an injunction or consent decree in light of such changes.”

Rule 60(b)(5) serves a particularly important function in what we have termed “institutional reform litigation.” For one thing, injunctions issued in such cases often remain in force for many years, and the passage of time frequently brings about changed circumstances—changes in the nature of the underlying problem, changes in governing law or its interpretation by the courts, and new policy insights—that warrant reexamination of the original judgment.

The Court of Appeals did not engage in the [appropriate] Rule 60(b)(5) analysis. Rather than applying a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied, the Court of Appeals used a heightened standard that paid insufficient attention to federalism concerns. And rather than inquiring broadly into whether changed conditions in Nogales provided evidence of an ELL program that complied with the EEOA, the Court of Appeals concerned itself only with determining whether increased ELL funding complied with the original declaratory judgment order. The court erred on both counts.

The Court of Appeals began its Rule 60(b)(5) discussion by citing the correct legal standard, but it quickly strayed. It referred to the situations in which changed circumstances warrant Rule 60(b)(5) relief as “likely rare,” and explained that, to succeed on these grounds, petitioners would have to make a showing that conditions in Nogales had so changed as to “sweep away” the District Court’s incremental funding determination. The Court of Appeals concluded that the District Court had not erred in determining that “the landscape was not so radically changed as to justify relief from judgment without compliance.”

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In addition to applying a Rule 60(b)(5) standard that was too strict, the Court of Appeals framed a Rule 60(b)(5) inquiry that was too narrow—one that focused almost exclusively on the sufficiency of incremental funding. In large part, this was driven by the significance the Court of Appeals attributed to petitioners’ failure to appeal the District Court’s original order. The Court of Appeals explained that “the central idea” of that order was that without sufficient ELL incremental funds, “ELL programs would necessarily be inadequate.” It felt bound by this conclusion, lest it allow petitioners to “reopen matters made final when the Declaratory Judgment was not appealed.” It repeated this refrain throughout its opinion.

In attributing such significance to the defendants’ failure to appeal the District Court’s original order, the Court of Appeals turned the risks of institutional reform litigation into reality. By confining the scope of its analysis to that of the original order, it insulated the policies embedded in the order—specifically, its incremental funding requirement—from challenge and amendment. But those policies were supported by the very officials who could have appealed them—the state defendants—and, as a result, were never subject to true challenge.

Instead of focusing on the failure to appeal, the Court of Appeals should have conducted the type of Rule 60(b)(5) inquiry prescribed in Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367 (2009). This inquiry makes no reference to the presence or absence of a timely appeal. It takes the original judgment as a given and asks only whether “a significant change either in factual conditions or in law” renders continued enforcement of the judgment “detrimental to the public interest.” It allows a court to recognize that the longer an injunction or consent decree stays in place, the greater the risk that it will improperly interfere with a State’s democratic processes.

The Court of Appeals purported to engage in a “changed circumstances” inquiry, but it asked only whether changed circumstances affected ELL funding and, more specifically, ELL incremental funding. Relief was appropriate, in the court’s view, only if petitioners “demonstrate[d] either that there [we]re no longer incremental costs associated with ELL programs in Arizona or that Arizona’s ‘base plus incremental costs’ educational funding model was so altered that focusing on ELL-specific incremental costs funding has become irrelevant and inequitable.”

This was a Rule 60(b)(5) “changed circumstances” inquiry in name only. In reality, it was an inquiry into whether the deficiency in ELL incremental funding that the District Court identified in 2000 had been remedied. And this, effectively, was an inquiry into whether the original order had been satisfied. Satisfaction of an earlier judgment is one of the enumerated bases for Rule 60(b)(5) relief—but it is not the only basis for such relief.

Rule 60(b)(5) permits relief from a judgment where “[i] the judgment has been satisfied, released or discharged; [ii] it is based on an earlier judgment that has been reversed or vacated; or [iii] applying it prospectively is no longer equitable.” Use of the disjunctive “or” makes it clear that each of the provision’s three grounds for relief is independently sufficient and therefore that relief may be warranted even if petitioners have not “satisfied” the original order. As317 petitioners argue, they may obtain relief if prospective enforcement of that order “is no longer equitable.”

To determine the merits of this claim, the Court of Appeals needed to ascertain whether ongoing enforcement of the original order was supported by an ongoing violation of federal law (here, the EEOA). It failed to do so.

As previously noted, the EEOA, while requiring a State to take “appropriate action to overcome language barriers,” 20 U.S.C. §1703(f), “leave[s] state and local educational authorities a substantial amount of latitude in choosing” how this obligation is met. Castaneda, 648 F.2d at 1009. Of course, any educational program, including the “appropriate action” mandated by the EEOA, requires funding, but funding is simply a means, not the end. By focusing so intensively on Arizona’s incremental ELL funding, the Court of Appeals misapprehended the EEOA’s mandate. And by requiring petitioners to demonstrate “appropriate action” through a particular funding mechanism, the Court of Appeals improperly substituted its own educational and budgetary policy judgments for those of the state and local officials to whom such decisions are properly entrusted.

The underlying District Court opinion reveals similar errors. Instead of determining whether changed circumstances warranted modification of the original order, the District Court asked only whether petitioners had satisfied the original declaratory judgment order through increased incremental funding.

The dissent defends the narrow approach of the lower courts with four principal conclusions that it draws from the record. All of these conclusions, however, are incorrect and mirror the fundamental error of the lower courts—a fixation on the issue of incremental funding and a failure to recognize the proper scope of a Rule 60(b)(5) inquiry.

First, the dissent concludes that “the Rule 60(b)(5) ‘changes’ upon which the District Court focused” were not limited to changes in funding, and included “‘changed teaching methods’” and “‘changed administrative systems.’” The District Court did note a range of changed circumstances, concluding that as a result of these changes, Nogales was “doing substantially better.” But it neither focused on these changes nor made up-to-date factual findings. To the contrary, the District Court explained that “it would be premature to make an assessment of some of these changes.” Accordingly, of the 28 findings of fact that the court proceeded to make, the first 20 addressed funding directly and exclusively. The last eight addressed funding indirectly. None of the District Court’s findings of fact addressed either “‘changed teaching methods’” or “‘changed administrative systems.’”

The dissent’s second conclusion is that “‘incremental funding’ costs…[were] the basic contested issue at the 2000 trial and the sole basis for the District Court’s finding of a statutory violation.” We fail to see this conclusion’s relevance to this Rule 60(b)(5) motion, where the question is whether any change in factual or legal circumstances renders continued enforcement of the original order inequitable. As the dissent itself acknowledges, petitioners “pointed to three sets of changed circumstances [in their Rule 60(b)(5) motion]318 which, in their view, showed that the judgment and the related orders were no longer necessary.” In addition to “increases in the amount of funding available to Arizona school districts,” these included “changes in the method of English-learning instruction,” and “changes in the administration of the Nogales school district.”

Third, the dissent concludes that “the type of issue upon which the District Court and Court of Appeals focused”—the incremental funding issue—“lies at the heart of the statutory demand for equal educational opportunity.” In what we interpret to be a restatement of this point, the dissent also concludes that sufficient funding and the presence or absence of an EEOA violation “are one and the same.” “In focusing upon the one,” the dissent asserts, “the District Court and Court of Appeals were focusing upon the other.”

Contrary to the dissent’s assertion, these two issues are decidedly not “one and the same.” Nor is it the case, as the dissent suggests, that the EEOA targets States’ provision of resources for ELL programming. What the statute forbids is a failure to take “appropriate action to overcome language barriers.” Funding is merely one tool that may be employed to achieve the statutory objective.

Fourth, the dissent concludes that the District Court did not order increased ELL incremental funding and did not dictate state and local budget priorities. The dissent’s point is that the District Court did not set a specific amount that the legislature was required to appropriate. The District Court did, however, hold the State in contempt and impose heavy fines because the legislature did not provide sufficient funding. These orders unquestionably imposed important restrictions on the legislature’s ability to set budget priorities.

Because the lower courts—like the dissent—misperceived both the nature of the obligation imposed by the EEOA and the breadth of the inquiry called for under Rule 60(b)(5), these cases must be remanded for a proper examination of at least four important factual and legal changes: the State’s adoption of a new ELL instructional methodology, Congress’ enactment of NCLB, structural and management reforms in Nogales, and increased overall education funding.

At the time of the District Court’s original declaratory judgment order, ELL instruction in Nogales was based primarily on “bilingual education.” In November 2000, Arizona voters passed Proposition 203, which mandated statewide implementation of a “structured English immersion” (SEI) approach [defined as] an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language.

In HB 2064, the state legislature attended to the successful and uniform implementation of SEI in a variety of ways[, including creating a task force] to “develop and adopt research based models of structured English immersion programs”[, requiring school districts to] select one of the adopted SEI models,319 [creating an office to train and] aid school districts [and teachers] in implementation of the models.

Research indicates there is documented, academic support for the view that SEI is significantly more effective than bilingual education. Findings of the Arizona State Department of Education in 2004 strongly support this conclusion. In light of this, a proper analysis of petitioners’ Rule 60(b)(5) motion should include further factual findings regarding whether Nogales’ implementation of SEI methodology constitutes a “significantly changed circumstance” that warrants relief.

Congress’ enactment of NCLB represents another potentially significant “changed circumstance.” NCLB marked a dramatic shift in federal education policy. It reflects Congress’ judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs, while holding them accountable for the results. NCLB implements this approach by requiring States receiving federal funds to define performance standards and to make regular assessments of progress toward the attainment of those standards. NCLB conditions the continued receipt of funds on demonstrations of “adequate yearly progress.”

Title III [of NCLB] requires States to ensure that ELL students “attain English proficiency, develop high levels of academic attainment in English, and meet the same challenging State academic content and student academic achievement standards as all children are expected to meet.” It requires States to set annual objective achievement goals for the number of students who will annually progress toward proficiency, achieve proficiency, and make “adequate yearly progress” with respect to academic achievement, and it holds schools accountable for meeting these objectives.

Petitioners argue that through compliance with NCLB, the State has established compliance with the EEOA. They note that when a State adopts a compliance plan under NCLB—as the State of Arizona has—it must provide adequate assurances that ELL students will receive assistance “to achieve at high levels in the core academic subjects so that those children can meet the same…standards as all children are expected to meet.” They argue that when the Federal Department of Education approves a State’s plan—as it has with respect to Arizona’s—it offers definitive evidence that the State has taken “appropriate action to overcome language barriers” within the meaning of the EEOA.

The Court of Appeals concluded, and we agree, that because of significant differences in the two statutory schemes, compliance with NCLB will not necessarily constitute “appropriate action” under the EEOA. Approval of a NCLB plan does not entail substantive review of a State’s ELL programming or a determination that the programming results in equal educational opportunity for ELL students.

This does not mean, however, that NCLB is not relevant to petitioners’ Rule 60(b)(5) motion. To the contrary, we think it is probative in four principal ways. First, it prompted the State to institute significant structural and programming changes in its delivery of ELL education, leading the Court of Appeals to observe that “Arizona has significantly improved its ELL infrastructure.” These changes320 should not be discounted in the Rule 60(b)(5) analysis solely because they do not require or result from increased funding. Second, NCLB significantly increased federal funding for ELL programming. These funds should not be disregarded just because they are not state funds. Third, through its assessment and reporting requirements, NCLB provides evidence of the progress and achievement of Nogales’ ELL students. This evidence could provide persuasive evidence of the current effectiveness of Nogales’ ELL programming.

Fourth, NCLB marks a shift in federal education policy. NCLB grants States “flexibility” to adopt ELL programs they believe are “most effective for teaching English.” Reflecting a growing consensus in education research that increased funding alone does not improve student achievement,² NCLB expressly refrains from dictating funding levels. Instead, it focuses on the demonstrated progress of students through accountability reforms.³ The original declaratory judgment order, in contrast, withdraws the authority of state and local officials to fund and implement ELL programs that best suit Nogales’ needs, and measures effective programming solely in terms of adequate incremental funding. This conflict with Congress’ determination of federal policy may constitute a significantly changed circumstance, warranting relief.

Structural and management reforms in Nogales constitute another relevant change in circumstances. These reforms were led by Kelt Cooper, the Nogales superintendent from 2000 to 2005, who “adopted policies that ameliorated or eliminated many of the most glaring inadequacies discussed by the district court.” Among other things, Cooper “reduce[d] class sizes,” “significantly improv[ed] student/teacher ratios,” “improved teacher quality,” “pioneered a uniform system of textbook and curriculum planning,” and “largely eliminated what had been a severe shortage of instructional materials.” [B]y “[u]sing careful financial management and applying for ‘all funds available,’ Cooper was able to achieve his reforms with limited resources.” But the Court of Appeals missed the legal import of this observation—that these reforms might have brought Nogales’ ELL programming into compliance with the EEOA even without sufficient ELL incremental funding to satisfy the District Court’s original order.

This was error. The EEOA seeks to provide “equal educational opportunity” to “all children enrolled in public schools.” Its ultimate focus is on the quality of321 educational programming and services provided to students, not the amount of money spent on them. Accordingly, there is no statutory basis for precluding petitioners from showing that Nogales has achieved EEOA-compliant programming by means other than increased funding—for example, through Cooper’s structural, curricular, and accountability-based reforms. The weight of research suggests that these types of local reforms, much more than court-imposed funding mandates, lead to improved educational opportunities.

The Court of Appeals discounted Cooper’s reforms for other reasons as well. It explained that while they “did ameliorate many of the specific examples of resource shortages that the district court identified in 2000,” they did not “result in such success as to call into serious question [Nogales’] need for increased incremental funds.” Among other things, the Court of Appeals referred to “the persistent achievement gaps documented in [Nogales’] AIMS test data” between ELL students and native speakers, but any such comparison must take into account other variables that may explain the gap. In any event, the EEOA requires “appropriate action” to remove language barriers, not the equalization of results between native and nonnative speakers on tests administered in English.

The Court of Appeals also referred to the subpar performance of Nogales’ high schools. There is no doubt that Nogales’ high schools represent an area of weakness, but the District Court made insufficient factual findings to support a conclusion that the high schools’ problems stem from a failure to take “appropriate action,” and constitute a violation of the EEOA.⁴

The EEOA’s “appropriate action” requirement grants States broad latitude to design, fund, and implement ELL programs. A proper Rule 60(b)(5) inquiry should recognize this and should ask whether, as a result of structural and managerial improvements, Nogales is now providing equal educational opportunities to ELL students.

A fourth potentially important change is an overall increase in the education funding available in Nogales. The original declaratory judgment order noted five sources of funding that collectively financed education in the State: (1) the State’s “base level” funding, (2) ELL incremental funding, (3) federal grants, (4) regular district and county taxes, and (5) special voter-approved district and county taxes called “overrides.” All five sources have notably increased since 2000.⁵ Notwithstanding these increases, the Court of Appeals rejected petitioners’ claim that overall education funds were sufficient to support322 EEOA-compliant programming in Nogales. The court reasoned that diverting base-level education funds would necessarily hurt other state educational programs, and was not, therefore, an “‘appropriate’ step.” In so doing, it foreclosed the possibility that petitioners could establish changed circumstances warranting relief through an overall increase in education funding available in Nogales.

This was clear legal error. As we have noted, the EEOA’s “appropriate action” requirement does not necessarily require any particular level of funding, and to the extent that funding is relevant, the EEOA certainly does not require that the money come from any particular source. It is unfortunate if a school, in order to fund ELL programs, must divert money from other worthwhile programs, but such decisions fall outside the scope of the EEOA. Accordingly, the analysis of petitioners’ Rule 60(b)(5) motion should evaluate whether the State’s budget for general education funding, in addition to any local revenues, is currently supporting EEOA-compliant ELL programming in Nogales.

Because the lower courts engaged in an inadequate Rule 60(b)(5) analysis, and because the District Court failed to make up-to-date factual findings, the analysis of the lower courts was incomplete and inadequate with respect to all of the changed circumstances just noted. These changes are critical to a proper Rule 60(b)(5) analysis, however, as they may establish that Nogales is no longer in violation of the EEOA and, to the contrary, is taking “appropriate action” to remove language barriers in its schools. If this is the case, continued enforcement of the District Court’s original order is inequitable within the meaning of Rule 60(b)(5), and relief is warranted.

[The Court reversed the district court’s entry of statewide relief as well, reasoning that the “record contains no factual findings or evidence that any school district other than Nogales failed (much less continues to fail) to provide equal educational opportunities to ELL students.” The district court’s entry of statewide relief was premised on the notion that an individualized remedy would be contrary to “the Arizona Constitution’s requirement of ‘a general and uniform public school system.’” Whether that premise is correct, however, is a[n] unsettled “question of state law, to be determined by state authorities.”]

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

The Court reaches its ultimate conclusion—that the lower courts did not “fairly consider” the changed circumstances—in a complicated way. It begins by placing this case in a category it calls “institutional reform litigation.” It then sets forth special “institutional reform litigation” standards applicable when courts are asked to modify judgments and decrees entered in such cases. It applies those standards, and finds that the lower courts committed error.

I disagree with the Court for several reasons. For one thing, the “institutional reform” label does not easily fit this case. For another, the review standards the Court enunciates for “institutional reform” cases are incomplete and, insofar as the Court applies those standards here, they effectively distort Rule323 60(b)(5)’s objectives. Finally, my own review of the record convinces me that the Court is wrong regardless. The lower courts did “fairly consider” every change in circumstances that the parties called to their attention. The record more than adequately supports this conclusion.

[T]he Court writes that the lower courts focused so heavily on the original decree’s “incremental funding” requirement that they failed to ask whether “the State was fulfilling its obligation under” federal law “by other means.” The problem with this basic criticism is that the State’s provision of adequate resources to its English-learning students, i.e., what the Court refers to as “incremental funding,” has always been the basic contested issue in this case. That is why the lower courts continuously focused attention directly upon it.

[When the suit was initially filed, the students sought an injunctive relief based on the claim] that the State had “systematically…failed or refused to provide fiscal as well as other resources sufficient to enable” the Nogales School District and other “similarly situated [school] districts” to “establish and maintain” successful programs for English learners. [T]he parties proceeded to trial on [a single] disputed issue in the case, namely whether the State and its education authorities “adequately fund and oversee” their English-learning program. [A]fter a three-day bench trial, the District Court made 64 specific factual findings, including the following: (1) The State assumes that its school districts need funding equal to a designated “base level amount” per child—reflecting the funding required to educate a “typical” student—along with an additional amount needed to educate each child with special educational needs, including those children who are not yet proficient in English. (2) In the year 2000, the “base level amount” the State assumed necessary to educate a typical child amounted to roughly $3,174 (in year 2000 dollars). (3) A cost study showed that the extra cost per student of the State’s English-learning program was $617 per English-learning child. (4) In the year 2000, the State’s funding formula provided school districts with only $150 to pay for the $617 in extra costs per child that the State assumed were needed to pay for its English-learning program.

The record contains no suggestion that Nogales, or any other school district, could readily turn anywhere but to the State to find the $467 per-student difference between the amount the State assumed was needed and the amount that it made available. Nor does the record contain any suggestion that Nogales or any other school district could have covered additional costs by redistributing “base level,” typical-child funding it received.

Based on these, and related findings, the District Court concluded that the State’s method of paying for the additional costs associated with English-learning education was “arbitrary and capricious and [bore] no relation to the actual funding needed.” The court added that the State’s provision of financial resources was “not reasonably calculated to effectively implement” the324 English-learning program chosen by the State. Hence, the State had failed to take “appropriate action” to provide the “practices, resources, and personnel” necessary to make its chosen educational theory a “reality.”

The District Court consequently entered judgment in the students’ favor. The State neither appealed nor complied with the 2000 declaratory judgment or any of the injunctive orders. When the State failed to produce either a study of the type ordered or a funding program rationally related to need for financial resources, the court imposed a series of fines to lead the State to comply with its orders.

[After passing HB 2064 in 2006, the petitioners asked the district court to consider whether the bill “would satisfy its judgment and injunctive orders” and to dissolve the injunctive relief orders pursuant to Rule 60(b)(5) based on changed circumstances. The district court “found that all of the changes, resource-related and otherwise, including the new teaching and administrative methods, taken together, were not sufficient to warrant setting aside the judgment or the injunctive orders; and it denied the Rule 60(b)(5) motion for relief.” The Court of Appeals affirmed.]

[T]he District Court and the Court of Appeals focused more heavily upon “incremental funding” costs for the reason that the State’s provision for those costs—i.e., its provision of the resources necessary to run an adequate English-learning program—was the basic contested issue at the 2000 trial and the sole basis for the District Court’s finding of a statutory violation. That is, the sole subsection (f) dispute in the case originally was whether the State provides the “practices, resources, and personnel necessary” to implement its English-learning program. To be sure, as the Court points out, changes other than to the State’s funding system could demonstrate that Nogales was receiving the necessary resources. But given the centrality of “resources” to the case, it is hardly surprising that the courts below scrutinized the State’s provision of “incremental funding,” but without ignoring the other related changes to which petitioners pointed, such as changes in teaching methods and administration (all of which the District Court rejected as insufficient).

[Second], the type of issue upon which the District Court and Court of Appeals focused lies at the heart of the statutory demand for equal educational opportunity. A State’s failure to provide the “practices, resources, and personnel necessary” to eliminate the educational burden that accompanies a child’s inability to speak English is precisely what the statute forbids. And no one in this case suggests there is no need for those resources, e.g., that there are no extra costs associated with English-learning education irrespective of the teaching method used. [L]anguage-acquisition instruction requires particular textbooks and other instructional materials, teachers trained in the school’s chosen method for teaching English, special assessment tests, and tutoring and other individualized instruction—all of which cost money. That is why the petitioners admitted to the District Court that English learners “need extra help and that costs extra money.”

325

[Third], the “resource” issue that the District Court focused upon when it decided the Rule 60(b)(5) motion, and the statutory subsection (f) issue that lies at the heart of the court’s original judgment (and the plaintiffs’ original complaint) are not different issues, as the Court claims. Rather in all essential respects they are one and the same issue. For all practical purposes, changes that would have proved sufficient to show the statutory violation cured would have proved sufficient to warrant setting aside the original judgment and decrees, and vice versa.

To say, as the Court does, that “[f]unding is merely one tool that may be employed to achieve the statutory objective,” while true, is beside the point. Of course, a State might violate the Act in other ways. But one way in which a State can violate the Act is to fail to provide necessary “practices, resources, and personnel.” And that is the way the District Court found that the State had violated the Act here. Thus, whatever might be true of some other case, in this case the failure to provide adequate resources and the underlying subsection (f) violation were one and the same.

NOTES AND QUESTIONS

1. What are the changed circumstances that warranted a reconsideration of the district court’s prior orders for the state to enact funding mechanisms that were rationally related to the actual funding needs of ELL programs? Changes necessarily occur over time and, thus, change in and of itself is not significant. Are any of the changes in the district sufficiently unusual or significant to warrant reconsideration of the court’s order? Are any of them insignificant?

2. Do these changed circumstances actually relate to the question of whether the state is adequately funding or implementing its ELL program? If so, would they warrant the dissolution of the initial decree or just a finding that the state is closer to being in compliance? In 2000, the district court found there was a $467 per-pupil shortfall for ELL students. Yet, as the majority points out, federal funding alone had increased by approximately that much between 2000 and 2006. Of course, this and other funding increases are necessary to some extent just to cover inflation and increased costs.

3. To the extent that changed circumstances are a result of a defendant’s attempt to comply with an earlier court order, should the defendant be permitted to argue that the facts amounting to partial compliance are relevant changed circumstances? Would this make the initial order practically irrelevant? Is HB 2064 an attempt at compliance or a changed circumstance?

4. The Court’s discussion of the relevance of funding to student achievement suggests the social science is settled in the finding that there is no significant connection. The materials from Chapter 3 on poverty, however, would indicate that the Court took a one-sided approach to the issue and ignored evidence to the contrary. See also Michael A. Rebell, Poverty, “Meaningful” Educational Opportunity, and the Necessary Role of the Courts, 85 N.C. L. Rev. 1467 (2006) (discussing judicial opinions and social science as to whether money matters).

5. The court in Castaneda held that a school district must take steps reasonably calculated to effectively implement its chosen program. A district has326 discretion in which program it adopts, but once it adopts a program, that program would presumably have some minimal level of fixed costs associated with effective implementation. Is there any rationale one could offer within the Castaneda analysis that would allow for inadequate funding of a chosen language program?

6. Did the lower courts concentrate on funding too much, or were they simply applying Castaneda? Who gets the better of the argument that funding and compliance are one in the same?

7. The Court does not explicitly adopt the Castaneda three-prong standard, but the Court’s approach generally reflects a focus on the same issues. Which of the Castaneda inquiries is this case most focused on: soundness of education theory, effective implementation of the theory, or the results of the implementation? Does the Court modify the Castaneda approach in any way?

8. Does the Court expect equality of results for ELL students in comparison to non-ELL students? In a footnote, the Court assigns significance to the age of ELL students when they enter an ELL program, to their potential involvement in gangs, and other demographic factors. Are these factors relevant to the issue in this case?

9. While the No Child Left Behind Act did not formally alter the affirmative obligations that the EEOA imposed on school districts to assist ELL students, the Court posits NCLB and its shift in federal policy were relevant to the adjudication of this EEOA case. At least one lower court picked up on this idea and relied on it as a basis for rejecting plaintiffs’ position in an EEOA case. United States v. Texas, 601 F.3d 354, 366 n.12 (5th Cir. 2010). The Every Student Succeeds Act, which replaced NCLB, however, eliminated the old metrics for assessing compliance with the Elementary and Secondary Education Act. Rather than federally defined adequate yearly progress goals on standardized tests, states have far more flexibility in setting goals and identifying the appropriate metrics for measuring success.

10. On remand from the Supreme Court decision in Horne, plaintiffs retooled some of their arguments and dropped others, but the district court held that plaintiffs failed to allege a statewide violation of the EEOA and that Nogales had “‘made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of [its] students[.]’” Flores v. Arizona, 2013 WL 10207656, at *14 (D. Ariz. Mar. 29, 2013) (quoting Castaneda v. Pickard). Thus, it dismissed jurisdiction in the case and brought an end to the most successful, long-running ELL litigation in history. The Ninth Circuit affirmed in Flores v. Huppenthal, 789 F.3d 994 (9th Cir. 2015).

While the Court’s opinion in Horne may place limits on the extent to which federal courts can compel school finance remedies, it has little, if any relevance, on state claims. In fact, the legal predicate in Horne was unusual in that the litigants had attempted state-wide school finance reform through the EEOA rather than the state constitution. Some state-based school finance claims327 have included subclaims on behalf of ELL students, whereas others have established principles that would be as applicable to inadequacies in ELL programs as they are to the general education program. With that said, funding for ELL programs tends to be more complex.

ELL programs are funded through three sources—local funds, state funds, and federal funds—but significant variations persist in regard to each. Because ELL students also tend to be low-income students, districts can draw on federal and state resources for low-income and at-risk students to fund their ELL programs. Some districts also receive additional funds through Title III of the Elementary and Secondary Education Act, which allocates funds solely for ELL programs. Relatively few districts, however, are eligible for Title III funds because, to be eligible, a district must serve an unusually high number of ELL students. State funding earmarked for ELL programs is, likewise, inconsistently available. Only a portion of states make special provision for ELL students, whereas others expect districts to fund ELL programs solely out of their low-income or at-risk student funding. Either way, districts vary in their capacity to fund these programs. Bruce D. Baker & Paul L. Markham, State School Funding Policies and Limited English Proficient Students, 26 Bilingual Res. J. 659 (2002).

Even in states that specifically provide supplemental state aid for ELL programs, the inconsistent funding for ELL programs generally still persists. States intend these supplemental funds to equalize local districts’ ability to provide comparable levels of service, but states most often distribute these supplemental funds on a flat basis, meaning that every district in the state receives the same amount of supplemental funding per pupil for ELL students. If that basic per-pupil grant is sufficient to cover the costs of ELL programs, equity concerns do not arise. Most often, however, the cost of educating ELL students is far higher than the per-pupil grant. Wealthy districts are in a position to make up the difference, whereas poorer districts are not.

In a national study of ELL funding practices, Bruce Baker and Paul Markham found that “districts serving higher percentages of LEP students tend to [be the same districts that] have less local capacity to provide services for those students.” Id. at 662. Summarizing their conclusions based on the data, they wrote

that state efforts to help local districts provide adequate programming opportunities for LEP children are often poorly conceived or applied, and are often inadequate. Furthermore, states presuming that Title [III] assistance and other small-scale federal interventions are able to pick up the slack are sadly misinformed. Low income school districts with a sizable LEP student population are unlikely to be able to meet the needs of the students in states that assume no responsibility for funding this student population. Moreover, states that maintain LEP funding policies that are neither rational nor equitable seem highly unlikely to give adequate help to local districts in need of services without recognizing the incongruity of their current LEP student funding policies.

Id. at 678. They attributed some of the variation to the “lack of analyses of present policies and dearth of available information on alternative policies.” Id. These funding failures are particularly problematic in those states in which the courts have held that education is a fundamental right or students have a328 right to an adequate education. In these states, variations in local capacity to meet ELL students’ educational needs are as problematic as variations in local capacity to meet general education needs. In fact, in many states, courts have emphasized the state’s obligation to special needs and at-risk students.

PROBLEM

Assume you represent a group of ELL students who live in a poor rural county. The number of ELL students in the county has significantly increased in the last five years. The district has adopted an ELL program, but it has struggled to raise the funds necessary to fully implement it, including the hiring of certified ELL instructors. Your state went through school finance litigation throughout the 1990s and early 2000s. The state supreme court recognized a constitutional right to an adequate education and ordered the state to revise its funding formula to address the needs of at-risk students, which the state did. The revised formula, however, does not specifically account for ELL students, although districts do receive additional funds for ELL students who are also low-income.

What legal claim is most likely to succeed and resolve the challenges your clients face: an EEOA claim against the district, an EEOA claim against the state premised on the need for additional funding support, or a state constitutional claim against the state?

5. The Role of Federal Agencies

While important, courts have not necessarily been the leaders in enforcing the right to equal educational opportunities for ELLs. As a general matter, a relatively small number of challenges to ELL programs have made it to litigation; many fewer produced judicial opinions. As a result, the case law in regard to ELLs is sparse. More often, ELL education has been contested through administrative and legislative processes. In some respects, the importance of administrative agencies makes sense, given that it was the Office for Civil Rights’ policy guidance that provided the foundation for Lau and the EEOA itself. Of course, OCR can only act pursuant to those statutory powers Congress grants it, and thus the EEOA limits OCR. But OCR, more so than courts or Congress, has been willing to explain and expand on the basic rights articulated by statutes or cases. Equally important, OCR retains the authority to enforce disparate impact standards through its administrative processes, whereas the courts have indicated private citizens have no power to enforce disparate impact in court. Thus, OCR also has the power to enforce slightly stronger substantive obligations than do courts.

While OCR has never made it a point to emphasize its relative power and importance in this area, its history and activities makes the point clear. Not only did OCR recognize ELL rights and issue guidance in regard to them well before Congress enacted the EEOA, OCR has since then regularly updated and supplemented its guidance, with the most notable policy statements coming in 1984,329 1985, and 1991. The documents articulate standards clearly consistent with Castaneda, but in the attempt to provide more specificity than can be found in court opinions, they also identify specific methods and steps that districts should and should not take to comply with the law. Implicit in the guidance is also a willingness to enforce these policies. For the OCR’s most recent significant policy guidance, see U.S. Department of Education, Policy Update on Schools’ Obligations Toward National Origin Minority Students with Limited-English Proficiency (Sept. 27, 1991).

Acting in accordance with its policy guidance, OCR has forced major school districts to significantly alter their ELL programs. For instance, in 2010, OCR investigated Los Angeles Unified School District’s (LAUSD) program, focusing on whether ELL students were receiving adequate instruction. LAUSD is the nation’s second-largest school system and has the most ELL students in the country, but only 3 percent of its ELL students were proficient in math and English at the high school level. Howard Blume, U.S. Department of Education’s Office for Civil Rights Targets L.A. Unified for Investigation, L.A. Times, Mar. 9, 2010. As a result of the OCR investigation, LAUSD agreed to comprehensive revisions in the way it teaches its ELL students. Under the agreement, the district is required to “focus on the academic progress of students judged to have adequately learned English…, [and to] concentrate efforts on students who have reached high school without mastering the English skills necessary to enroll in a college-preparatory curriculum and who may be at risk of dropping out.” Howard Blume, LAUSD Agrees to Revise How English Learners, Blacks Are Taught, L.A. Times, Oct. 11, 2011. After similar enforcement actions in other districts, the Department of Education, in conjunction with the Department of Justice, sought to further raise the profile of these issues and clarify districts’ legal obligations in 2015. Toward those ends, they released joint policy guidance, a toolkit, and resources, summarizing the relevant law, best practices, and research. U.S. Department of Education & U.S. Department of Justice, Dear Colleague Letter: English Learner Students and Limited English Proficient Parents, Jan. 7, 2015, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf.

Congress, in similar fashion, has more recently sought to influence ELL policy indirectly through its overall agenda to improve student achievement through standardized testing. The No Child Left Behind Act of 2002 sought to ensure that schoolchildren have a “fair, equal, and significant opportunity to obtain a high-quality education” by requiring that all students reach proficiency in state educational standards as measured by standardized achievement tests. 20 U.S.C. §6301 (2006). In terms of ELL students, the Act took two significant steps. First, it required states to adopt or develop English language proficiency tests to determine which students should be classified as ELLs and to provide a reliable and consistent basis for tracking those students’ achievement. 20 U.S.C. §6311(7). Second, the Act’s primary stated goal was to close the achievement gap between various student subgroups, and it included ELL students as one of the subgroups whose achievement gap with other students should be closed. 20 U.S.C. §6301(3).

OCR has also noted the intersecting rights and issues that ELL students and students with disabilities might have. The rights of students with disabilities are330 addressed in Chapter 6, but it is important to emphasize here that language barriers, if not dealt with carefully, will only complicate the issue. Schools might perceive a student to have a disability, when, in fact, the student only has a language barrier. Likewise, an ELL student may also have a disability, but a district overlooks it because it is more immediately focused on the language barrier. For these reasons, ELL students suffer from both under- and over-identification of disability, depending on the district. Scholars find that an even deeper level of nuance emerges when one disaggregates ELL students by age and ethnicity:

Data on Latino/a students is complicated by the fact that they tend to be under-identified in elementary school but over-identified in high school. It may be that younger Latino/a students are being placed in bilingual or English as a Second Language (ESL) classes and are thus not referred for special education until later in their school careers. To fully document Latino/a overrepresentation, there is a need for data that is disaggregated by age or grade level, English proficiency, as well as data that includes information on whether districts offer bilingual or ESL classes. Similar analyses are needed to fully understand the impact that ESL programs might be having on the relatively low referral of Asian students for special education and to see if there are within-group differences among Asian students of different social classes, nationalities, and immigration statuses.

Beth A. Ferri & David J. Connor, Special Education and the Subverting of Brown, 8 J. Gender Race & Just. 57, 62-63 (2004). In short, properly serving ELL students requires that school districts develop sophistication in both language programs and special education.

Martha Minow agrees with the need for more sophistication in serving students with language barriers, disabilities or both, but she emphasizes that

[t]he disproportionate representation of LEP students in special education is inextricably connected to issues of race. Like LEP students, more minorities continue to be served in special education than would be expected from their percentage of the general school population. Language difficulties may be only a part of a much larger chain of causation. Clearly, changing racial and ethnic demographics necessitate an examination of how LEP students and multicultural populations are being educated. Without reform and proper assessment of LEP students in regard to special education placement, the increasing racial, ethnic, and linguistic diversity of students could potentially overwhelm special education programs.

Martha L. Minow, Limited English Proficient Students and Special Education, (National Center on Accessing the General Curriculum 2001).

D. ACCESS TO SCHOOL AND LEARNING

The less prevalent yet most serious issue facing some ELL students is enrollment in school itself. The additional cost that comes with educating ELL students has, at times, prompted some localities to attempt to deny ELL students the opportunity to attend public school. Some states have also attempted to use school policy as a means of setting immigration policy, with the thought being that if331 children of undocumented immigrants were excluded from schools their parents might leave the community, and thereby alleviate the perceived burdens immigration poses on communities in general. The Supreme Court addressed this issue in Plyler v. Doe and held that it was unconstitutional for schools to exclude these students.

While the Court’s holding was clear in Plyler, its rationale did not stand on firm precedent and has been contested ever since. Over the past decade, states have enacted legislation directly inapposite to Plyler. Courts have rejected legislation that directly excludes undocumented children from school, but courts have been less consistent in their approach to indirect impingements on the opportunity to attend school. Consider a law that requires that schools ask newly enrolled students to show proof of citizenship or lawful residency status, and then report that information to the state department of education. Information collection and reporting does not directly deny these students access to schools, but it sends a chilling message to parents and can have the effect of excluding children. As you read Plyler, consider the extent to which it might prohibit the indirect effects on educational access.

Plyler v. Doe

457 U.S. 202 (1982)

Justice Brennan delivered the opinion of the Court.

The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens.

Since the late 19th century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime, and those who have entered unlawfully are subject to deportation. But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas.

In May 1975, the Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not “legally admitted” into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not “legally admitted” to the country. These cases involve constitutional challenges to those provisions.

The Fourteenth Amendment provides that “[n]o State shall…deprive any person of life, liberty, or property, without due process of law; nor deny332 to any person within its jurisdiction the equal protection of the laws.” Appellants argue at the outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction” of the State of Texas, and that they therefore have no right to equal protection. We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Matthews v. Diaz, 426 U.S. 67, 77 (1976).

[T]he Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing v. United States, 163 U.S. 228, 238 (1896). To permit a State to employ the phrase “within its jurisdiction” in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection.

III

The Equal Protection Clause directs that “all persons similarly circumstanced shall be treated alike.” F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). But so too, “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” The initial discretion to determine what is “different” and what is “the same” resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.

But we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification. The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus we have treated as presumptively invidious those classifications that disadvantage a “suspect class,” or that impinge upon the exercise of a “fundamental right.” With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially333 invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State. We turn to a consideration of the standard appropriate for the evaluation of [the Texas statute].

Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants—numbering in the millions—within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.⁶

The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their “parents have the ability to conform their conduct to societal norms,” and presumably the ability to remove themselves from the State’s jurisdiction; but the children who are plaintiffs in these cases “can affect neither their parents’ conduct nor their own status.” Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice. “[V]isiting…condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the…child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the…child is an ineffectual—as well as unjust—way of deterring the parent.” Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972).

Of course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic since it is the product of conscious, indeed unlawful, action. But §21.031 is directed334 against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States. Yet that appears to be precisely the effect of §21.031.

Public education is not a “right” granted to individuals by the Constitution. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). But neither is it merely some governmental “benefit” indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. “[A]s…pointed out early in our history,…some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.” Wisconsin v. Yoder, 406 U.S. 205, 221 (1972). In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.

In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. But more directly, “education prepares individuals to be self-reliant and self-sufficient participants in society.” Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social economic, intellectual, and psychological well-being of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause.

These well-settled principles allow us to determine the proper level of deference to be afforded §21.031. Undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a “constitutional irrelevancy.” Nor is education a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population. But more is involved in these cases than the abstract question whether §21.031 discriminates against a suspect class, or whether education is a fundamental right. Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying335 these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining the rationality of §21.031, we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in §21.031 can hardly be considered rational unless it furthers some substantial goal of the State.

It is the State’s principal argument that the undocumented status of these children vel non establishes a sufficient rational basis for denying them benefits that a State might choose to afford other residents. The State notes that while other aliens are admitted “on an equality of legal privileges with all citizens under non-discriminatory laws,” the asserted right of these children to an education can claim no implicit congressional imprimatur. Indeed, in the State’s view, Congress’ apparent disapproval of the presence of these children within the United States, and the evasion of the federal regulatory program that is the mark of undocumented status, provides authority for its decision to impose upon them special disabilities. Faced with an equal protection challenge respecting the treatment of aliens, we agree that the courts must be attentive to congressional policy; the exercise of congressional power might well affect the State’s prerogatives to afford differential treatment to a particular class of aliens. But we are unable to find in the congressional immigration scheme any statement of policy that might weigh significantly in arriving at an equal protection balance concerning the State’s authority to deprive these children of an education.

The Constitution grants Congress the power to “establish an uniform Rule of Naturalization.” Drawing upon this power, upon its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to close its borders, Congress has developed a complex scheme governing admission to our Nation and status within our borders. The States enjoy no power with respect to the classification of aliens. This power is “committed to the political branches of the Federal Government.” Although it is “a routine and normally legitimate part” of the business of the Federal Government to classify on the basis of alien status, and to “take into account the character of the relationship between the alien and this country,” only rarely are such matters relevant to legislation by a State.

As we recognized in DeCanas v. Bica, 424 U.S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In DeCanas, the State’s program reflected Congress’ intention to bar from employment all aliens except those possessing a grant of permission to work in this country. In contrast, there is no indication that the disability imposed by §21.031 corresponds to any identifiable congressional policy. The State does not claim that the conservation of state educational resources was ever a congressional concern in restricting immigration. More importantly, the classification reflected in §21.031 does not operate harmoniously within the federal program.

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To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. In light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented child will in fact be deported until after deportation proceedings have been completed. It would of course be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain.

We are reluctant to impute to Congress the intention to withhold from these children, for so long as they are present in this country through no fault of their own, access to a basic education. In other contexts, undocumented status, coupled with some articulable federal policy, might enhance state authority with respect to the treatment of undocumented aliens. But in the area of special constitutional sensitivity presented by these cases, we perceive no national policy that supports the State in denying these children an elementary education. The State may borrow the federal classification. But to justify its use as a criterion for its own discriminatory policy, the State must demonstrate that the classification is reasonably adapted to “the purposes for which the state desires to use it. “We therefore turn to the state objectives that are said to support §21.031.

Appellants argue that the classification at issue furthers an interest in the “preservation of the state’s limited resources for the education of its lawful residents.” Of course, a concern for the preservation of resources standing alone can hardly justify the classification used in allocating those resources. The State must do more than justify its classification with a concise expression of an intention to discriminate. Apart from the asserted state prerogative to act against undocumented children solely on the basis of their undocumented status—an asserted prerogative that carries only minimal force in the circumstances of these cases—we discern three colorable state interests that might support §21.031.

First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, §21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that337 “[c]harging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration,” at least when compared with the alternative of prohibiting the employment of illegal aliens.

Second, while it is apparent that a State may “not…reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools,” appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State’s ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State.

[T]he State failed to offer any “credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education.” Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion. In terms of educational cost and need, however, undocumented children are “basically indistinguishable” from legally resident alien children.

Finally, appellants suggest that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State. Even assuming that such an interest is legitimate, it is an interest that is most difficult to quantify. The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State’s borders. In any event, the record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.

If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here. Accordingly, the judgment of the Court of Appeals in each of these cases is affirmed.

Justice Blackmun concurring.

I believe the Court’s experience has demonstrated that the Rodriguez formulation does not settle every issue of “fundamental rights” arising under the338 Equal Protection Clause. Only a pedant would insist that there are no meaningful distinctions among the multitude of social and political interests regulated by the States, and Rodriguez does not stand for quite so absolute a proposition. To the contrary, Rodriguez implicitly acknowledged that certain interests, though not constitutionally guaranteed, must be accorded a special place in equal protection analysis. Thus, the Court’s decisions long have accorded strict scrutiny to classifications bearing on the right to vote in state elections, and Rodriguez confirmed the “constitutional underpinnings of the right to equal treatment in the voting process.” Yet “the right to vote, per se, is not a constitutionally protected right.” Instead, regulation of the electoral process receives unusual scrutiny because “the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights.” In other words, the right to vote is accorded extraordinary treatment because it is, in equal protection terms, an extraordinary right: a citizen cannot hope to achieve any meaningful degree of individual political equality if granted an inferior right of participation in the political process. Those denied the vote are relegated, by state fiat, in a most basic way to second-class status.

In my view, when the State provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with those purposes, mentioned above, of the Equal Protection Clause. Children denied an education are placed at a permanent and insurmountable competitive disadvantage. And when those children are members of an identifiable group, that group—through the State’s action—will have been converted into a discrete underclass. Other benefits provided by the State, such as housing and public assistance, are of course important; to an individual in immediate need, they may be more desirable than the right to be educated. But classifications involving the complete denial of education are in a sense unique, for they strike at the heart of equal protection values by involving the State in the creation of permanent class distinctions. In a sense, then, denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage.

This conclusion is fully consistent with Rodriguez. Rodriguez held that “a State need not justify by compelling necessity every variation in the manner in which education is provided to its population.” Similarly, it is undeniable that education is not a “fundamental right” in the sense that it is constitutionally guaranteed. Here, however, the State has undertaken to provide an education to most of the children residing within its borders. And, in contrast to the situation in Rodriguez, it does not take an advanced degree to predict the effects of a complete denial of education upon those children targeted by the State’s classification. In such circumstances, the voting decisions suggest that the State must offer something more than a rational basis for its classification.

Chief Justice Burger, with whom Justice White, Justice Rehnquist, and Justice O’Connor join, dissenting.

I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into339 this country, are indeed physically “within the jurisdiction” of a state. However, as the Court concedes, this “only begins the inquiry.” The Equal Protection Clause does not mandate identical treatment of different categories of persons.

The dispositive issue in these cases, simply put, is whether, for purposes of allocating its finite resources, a state has a legitimate reason to differentiate between persons who are lawfully within the state and those who are unlawfully there. The distinction the State of Texas has drawn—based not only upon its own legitimate interests but on classifications established by the Federal Government in its immigration laws and policies—is not unconstitutional.

The Court acknowledges that, except in those cases when state classifications disadvantage a “suspect class” or impinge upon a “fundamental right,” the Equal Protection Clause permits a state “substantial latitude” in distinguishing between different groups of persons. Moreover, the Court expressly—and correctly—rejects any suggestion that illegal aliens are a suspect class or that education is a fundamental right. Yet by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the Court spins out a theory custom-tailored to the facts of these cases.

In the end, we are told little more than that the level of scrutiny employed to strike down the Texas law applies only when illegal alien children are deprived of a public education. If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example.

The Court first suggests that these illegal alien children, although not a suspect class, are entitled to special solicitude because they lack “control” over or “responsibility” for their unlawful entry into this country. Similarly, the Court appears to take the position that §21.031 is presumptively “irrational” because it has the effect of imposing “penalties” on “innocent” children. However, the Equal Protection Clause does not preclude legislators from classifying among persons on the basis of factors and characteristics over which individuals may be said to lack “control.” Indeed, in some circumstances persons generally, and children in particular, may have little control over or responsibility for such things as their ill health, need for public assistance, or place of residence. Yet a state legislature is not barred from considering, for example, relevant differences between the mentally healthy and the mentally ill, or between the residents of different counties, simply because these may be factors unrelated to individual choice or to any “wrongdoing.” The Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility; it is not an all-encompassing “equalizer” designed to eradicate every distinction for which persons are not “responsible.”

NOTES AND QUESTIONS

1. What level of review is the Court applying? Would this plan pass scrutiny under the Court’s application of rational basis in Rodriguez? Why does the Plyler Court find that it fails? Is the Court intruding on social policy and judgments about what is good for society, or just assessing rationality?

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2. Is this case precedent for the principle that education, although not a fundamental right, warrants some level of special or rigorous scrutiny? If current precedent does not require some level of rigorous scrutiny for educational inequality and deprivations, are the precedents themselves and the current broad tiers of scrutiny (rational, intermediate, and strict) of questionable validity in that they do not take relevant differences into account? What level of scrutiny or review would be appropriate for educational deprivations or inequalities (that do not otherwise involve suspect discrimination or interference with fundamental rights)?

3. The Court’s decision was 5-4 in Plyler, and its principle has remained contentious in some states. Reasoning that the decision hinged on a rigorous rational basis review, some opponents believe that were the Court to revisit the issue it would decide the case differently. As a result, legislators have supported and, in some instances, passed anti-immigrant legislation that is clearly unconstitutional under Plyler. See, e.g., Lawmakers to Debate Education for Illegals, Augusta Chron., Dec. 29, 2005, at B5.

Starting in 2010 with Arizona, several states enacted their own versions of global immigration reform. Within their sweeping legislation, some included provisions pertaining to schools or students. See, e.g., S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010). Most notably, Alabama passed legislation in 2011 that included a provision that requires school officials to ask for and report a student’s immigration status to the state education agency. Beason-Hammon Alabama Taxpayer and Citizen Protection Act (HB 56), Ala. Code §31-13-7 (LexisNexis 2011). The provision, however, stops short of contravening Plyler directly and does not prohibit undocumented youths from enrolling in school. Drawing on the Supreme Court’s recent rejection in Arizona v. United States, 132 S. Ct. 2492 (2012) of Arizona’s mandate that aliens carry registration documents, advocates and the Department of Justice have argued that Alabama’s legislation is similarly preempted by federal law. The Department of Justice has also charged that Alabama’s legislation has led to hostility toward and bullying of Latino students and their parents, and a general fear by children that they or their parents might be removed from school and the country. To the extent this amounts to a hostile environment, it would raise Title VI concerns. In 2013, Alabama agreed to a settlement, under which the state would permanently refrain from “[r]equiring schools to verify the immigration status of newly enrolled K-12 students.” Southern Poverty Law Center, SPLC Victorious Against Alabama Ant-immigrant Law, Oct. 28, 2013, https://www.splcenter.org/news/2013/10/29/splc-victorious-against-alabama-anti-immigrant-law. In 2014, the Departments of Education and Justice also released new policy guidance reinforcing the law in this area. Dear Colleague Letter: School Enrollment Procedures, May 8, 2014, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405.pdf.

4. Immigrants’ access to public education can also be blocked through unofficial policies or local exercises of discretion, with or without malicious intent. In 2014, New York saw a significant increase in the number of children fleeing from violence in Central America. As their numbers in New York increased, so too did the administrative burdens to enrollment. Given the circumstances of their departure from their countries of origin, many of these341 students lacked official documentation of their age, prior educational experience, and other relevant information. Schools used the lack of documentation to deny them enrollment. This generated an investigation by the New York State Department of Education and attorney general. They found that twenty New York school districts were “blocking access for undocumented immigrant children.” Benjamin Mueller, New York Compels 20 School Districts to Lower Barriers to Immigrants, N.Y. Times, Feb. 18, 2015. “[D]espite repeated instructions from federal and state law enforcement agencies, [districts] continued to bar children based on their immigration status.” Id.

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1 Students whose first language is not English and who have not yet mastered English are commonly categorized in various ways: English Language Learners (ELLs), Limited English Proficient (LEP) students, and English as a Second Language (ESL) students. This chapter uses English Language Learners.

2 See, e.g., Hanushek, The Failure of Input-Based Schooling Policies, 113 Economic J. F64, F69 (2003) (concluding that although such policies “have been vigorously pursued over a long period of time,” there is “no evidence that the added resources have improved student performance”); A. LeFevre, American Legislative Exchange Council, Report Card on American Education: A State-by-State Analysis 132-133 (15th ed. 2008) (concluding that spending levels alone do not explain differences in student achievement); G. Burtless, Introduction and Summary, in Does Money Matter? The Effect of School Resources on Student Achievement and Adult Success 1, 5 (1996) (noting that “[i]ncreased spending on school inputs has not led to notable gains in school performance”).

3 Education literature overwhelmingly supports reliance on accountability-based reforms as opposed to pure increases in spending. See, e.g., Hanushek & Raymond, Does School Accountability Lead to Improved Student Performance? 24 J. Pol’y Analysis & Mgmt. 297, 298 (2005); U.S. Chamber of Commerce, Leaders and Laggards: A State-by-State Report Card on Educational Effectiveness 6, 7-10 (2007); S. Fuhrman, Introduction, in Redesigning Accountability Systems for Education 1, 3-9 (S. Fuhrman & R. Elmore eds. 2004); S. Hanushek et al., Making Schools Work: Improving Performance and Controlling Costs 151-176 (1994).

4 There are many possible causes for the performance of students in Nogales’ high school ELL programs. These include the difficulty of teaching English to older students (many of whom, presumably, were not in English-speaking schools as younger students) and problems, such as drug use and the prevalence of gangs. We note that no court has made particularized findings as to the effectiveness of ELL programming offered at Nogales’ high schools.

5 The Court of Appeals reported, and it is not disputed, that “[o]n an inflation-adjusted statewide basis, including all sources of funding, support for education has increased from $3,139 per pupil in 2000 to an estimated $3,570 per pupil in 2006. Adding in all county and local sources, funding has gone from $5,677 per pupil in 2000 to an estimated $6,412 per pupil in 2006. Finally, federal funding has increased. In 2000, the federal government provided an additional $526 per pupil; in 2006, it provided an estimated $953.”

6 We reject the claim that “illegal aliens” are a “suspect class.” Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is itself a crime. In addition, it could hardly be suggested that undocumented status is a “constitutional irrelevancy.”

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A. INTRODUCTION

Our laws and the institutions they govern frequently reflect social norms relating to sex and gender, which in turn produce gender inequities. Education law and policy is no different. States historically promoted and reinforced gender inequality by excluding women from certain educational programs altogether and treating them unequally in others. Over the past few decades, judicial and administrative decisions have caused many gender disparities to wane. But many disparities persist and, as schools change, gender inequalities arise in new, different, and more complex forms.

Many schools continue to provide unequal athletic opportunities to women. Some inequalities are so common that society often fails to recognize them as problematic. For example, many high school girls’ soccer teams cannot practice or schedule matches on their school’s “football” field. This exact type of dispute was at the heart of a Supreme Court decision in 2005 involving a girls’ high school basketball coach who alleged he was removed from his position due to his complaints of gender discrimination. At the higher education level, issues of gender inequality garner more attention. But some supporters of men’s athletics retort that the law has overreacted and constricted men’s opportunities for no reason other than to achieve numerical equity.

Important problems of gender inequity reach far beyond sporting venues. Many educational programs disregard the disproportionately low number of women in advanced math and science courses. And, as a case in this chapter reveals, gender stereotypes continue to play a role in how educational institutions perceive and steer students. They may subtly or explicitly convey the notion, for instance, that men should be doctors and women nurses, or men are best suited to be veterinarians while women are more suited to ancillary positions such as technicians, pet groomers, or dog walkers.

One response to the continuing prevalence of gender bias and inequality is to operate single-sex programs. But these programs themselves may be premised on gender stereotypes and thus legally suspect. In fact, several long-standing single-sex institutions have a history of explicitly excluding women under the344 premise that they are not fit for the particular educational opportunities the institution offers. This chapter develops the law and theory surrounding all of these practices, as well as other less obvious forms of gender discrimination, such as differential treatment based on pregnancy, parental status, sexual activity, and sexual orientation.

As a preliminary matter to any of their categories of inequality, one should first distinguish between the foundational concepts of gender and sex. The terms are often used interchangeably, but the concepts are distinct. “Sex” refers to a person’s physical attributes and biological or anatomical identity. “Gender,” on the other hand, refers to the characteristics and roles culturally defined and associated with “maleness” or “femaleness.” What is considered “masculine” or “feminine” is dictated by cultural norms, and thus, varies between and within different ethnic and racial groups, classes, and geographical regions. In other words, gender is a fluid concept that has little fixed meaning and necessarily depends on the characteristics that are socially attributed as being male, female, or neither. The distinction between sex and gender generally marks the line between policies that impermissibly discriminate and those that take legitimate differences between men and women into account.

Historically, sex has been understood as a proxy for one’s gender, with the assumption being that biology defines one’s characteristics, roles within society, and sexual orientation. See Katherine Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 40 (1995). Under the Western construction of this frame, men are supposed to be “aggressive” and women “passive”; men are the primary breadwinners, while women are primarily responsible for domestic activities; and men are sexually and emotionally attracted to women, and women to men. Although these roles and understandings of sex and gender vary depending on culture, stereotypes of what makes someone a man or woman have been largely defined in relation to one’s biological anatomy. The cases and laws in this chapter reflect a continual tension in distinguishing gender role stereotypes from scientific fact or biological attributes of sex. For instance, commentators and scientists continue to debate whether boys and girls learn differently and whether any such difference is biological or socially constructed.

More recently, society and the law have also struggled with how to address sexual orientation. Individuals whose sexual orientation and/or gender identity differs from cultural expectations have tended to experience unfavorable treatment in schools. An individual whose biological sex is male but who exhibits behavior that culture labels as female might be bullied in school. The question in these instances is whether the student is receiving unequal treatment based on sex, gender, gender identity, sexual orientation, or behavior. If the unequal treatment is based on biological sex, few would question that it is prohibited discrimination, but the issue becomes more complex and contested as to the other bases.

As you read the cases in this chapter, resist the urge to filter the cases through your instincts of whether differential treatment of individuals makes sense as a practical matter and, instead, continually ask whether the differential treatment is justified by some immutable difference between men and women.345 Consider whether the differences that we might perceive between men and women—even if real—are a result of individuals conforming to societal, familial, religious, and educational expectations or are a result of biological differences beyond the control of individuals. Also, consider whether the differences between men and women, regardless of the cause of those differences, are significant enough to justify differential treatment or whether differential treatment is justified primarily by ease and habit. Finally, scrutinize the courts’ analysis around these issues and whether the courts’ analyses treat some differences as immutable when in fact the differences are a product of society.

B. LEGAL STANDARDS

1. The Constitutional Standard: Evolution Toward Intermediate Scrutiny

Gender classifications and discrimination have a long history in this country. The Supreme Court first considered gender discrimination in Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872). In Bradwell, the Court examined the state’s exclusion of women from the practice of law. The Court rejected the argument that practicing law was a “privilege” and suggested “that the [F]ourteenth [A]mendment opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the servile employments of life; and that no citizen can be excluded from any one of them.” Id. at 137. The concurring opinion, however, argued that the state was justified in its prohibition, since “[t]he paramount destiny and mission of woman [sic] are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based on exceptional cases [of a woman being qualified to practice law].” Id. at 141-142.

During the early twentieth century, legislatures began to adopt labor laws that restricted working hours for women, premised on the notion that women needed to be shielded from certain rigors in the workplace. In Muller v. Oregon, 208 U.S. 412 (1908), the state presented sociological evidence that sought to demonstrate the negative effects of long work hours and harsh working conditions on women. The Court was impressed by this evidence and rationale, writing:

That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

346 Id. at 421. Subsequent courts, likewise, embraced stereotypical gender roles under the guise of meaningful biological differences as a basis for upholding legislation that purported to protect women. See, e.g., Quong Wing v. Kirkendall, 223 U.S. 59 (1912) (denying equal protection challenge to a law exempting laundries operated by two women or less from licensing fees, suggesting that the occupation was commonly recognized as “women’s work” and arguing that “the Fourteenth Amendment does not interfere by creating a fictitious equality where there is a real difference”).

These gender stereotypes were so prevalent and accepted that the Court did not even acknowledge the equal protection implications. Rather, the Court initially addressed them as commerce and police power issues. It was not until 1948 that the Supreme Court first evaluated the equal protection implications of gender classifications. Yet, the Court was still unwilling to break free of gender stereotypes and distinguish them from sex or biological differences. In Goesart v. Clearly, 355 U.S. 464 (1948), the Court upheld a statute that prohibited a woman from obtaining a bartender license unless she was the “wife or daughter of the male owner of a licensed liquor establishment.” The Court reasoned that

[t]he Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards.

Id. at 465-466. The Court recognized that gender classifications are controlled by the Equal Protection Clause, but, in accordance with the jurisprudence at the time, only subjected the statute to rational basis review. One of the appellant’s arguments was that the distinction between women who were related to the bar owner and those who were not lacked a rational basis since the legislative concerns supporting the statute were equally applicable to women who were related to bar owners. The Court responded with great deference to the legislature, echoing the notion that women are inherently different and should be treated as such:

[T]he Constitution does not require situations “which are different in fact or opinion to be treated in law as though they were the same.” Since bartending by women may, in the allowable legislative judgment, give rise to moral and social problems against which it may devise preventive measures, the legislature need not go to the full length of prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition. Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid’s husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature.

347 Id. (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)). Thus, the Court refused to scrutinize the judgment of the legislature, embracing the gender stereotypes prevalent at the time and disregarding the scientific and socioscientific research indicating the lack of support for such a distinction between men and women. See also Hoyt v. Florida, 368 U.S. 57 (1961) (upholding a statute excluding women from jury service unless they have voluntarily registered because women are “the center of home and family life”).

Finally, in 1971, the Supreme Court began to scrutinize gender-based legislation in a more searching way in Reed v. Reed, 404 U.S. 71 (1971). There the Court evaluated a state intestate succession probate provision that gave preference to men as administrators of the estate (preferring sons over daughters, brothers over sisters, male kin over female kin, etc.). While the Reed Court continued to apply the rational basis level of scrutiny for gender classifications, the Court engaged in a far more searching inquiry and rejected the state’s argument that “men as a rule [are] more conversant with business affairs than…women.” Id. at 76. This was the first time that the Supreme Court invalidated a gender classification.

Two years later, a plurality of the Court supported an even more searching inquiry of gender classifications. In Fronteiro v. Richardson, 411 U.S. 677, 678 (1973), the plurality held that “classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to strict judicial scrutiny.” There, the plurality detailed the history of sex discrimination and gender stereotypes, and analogized gender discrimination to racial discrimination:

Traditionally, such discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women, not on a pedestal, but in a cage.…As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children.

Id. at 684-685. The Fronteiro plurality emphasized the immutability of sex, indicating that gender should be viewed as a “suspect class” since “what differentiates sex from such non-suspect statuses as intelligence…, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Id. at 687. The concurring Justices, however, argued that the legislation at issue was unconstitutional under Reed and expressed reluctance to categorize gender as invoking the “strictest test of judicial scrutiny,” particularly given that Congress was in the midst of enacting a constitutional amendment that would have definitely resolved this issue. Id. at 691-692.

The constitutional amendment, although approved by Congress, failed in the states. The Court also subsequently retreated from the strict scrutiny standard asserted by the Fronteiro plurality. But the Court was unwilling to leave gender classifications to the deferential rational basis scrutiny standard. 348 Cf. Schlesinger v. Ballard, 419 U.S. 498, 506-507 (1975); Stanton v. Stanton, 421 U.S. 7, 14 (1975).

In Craig v. Boren, 429 U.S. 190 (1976), the Court finally articulated the intermediate scrutiny standard that continues to apply today. The facts in Craig involved a statute that prohibited the sale of 3.2 percent alcohol beer to males between the ages of 18 and 21, but allowed the sale of the same beer to women of the same age. Reasoning that Reed and its progeny had applied a more rigorous scrutiny than rational basis and had found that certain governmental objectives were insufficient to justify gender-based classifications, the Court formalized a higher level of review for gender classifications. It held that “[c]lassifications by gender must serve important governmental objectives and be substantially related to achievement of those objectives.” Id. at 197.

Six years later in Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), the Supreme Court addressed gender classifications in education under this new intermediate scrutiny standard. Mississippi operated an all-women’s college that denied males admission to its nursing program. The Court applied intermediate scrutiny, requiring that the classification serve important governmental objectives and that the means employed are substantially related to the achievement of those objectives. The Court also scrutinized whether the objectives and justifications for the program reflected “archaic and stereotypical notions.” Id. at 725. The Court found that, in fact, the state lacked an “important objective” to justify its policy and its means were not “substantially related” to its ends in any event.

More recently, in United States v. Virginia, the Supreme Court reiterated that intermediate scrutiny as the constitutional standard for evaluating gender classifications, although some suggest its articulation of the standard was stronger than in Hogan. The Court summarized the relevant precedent and its application this way:

[T]he reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.

United States v. Virginia, 518 U.S. 515, 533-534 (1996).

QUESTIONS

1. What justifies applying intermediate scrutiny to gender classification while racial classifications are subject to strict scrutiny? What justifies applying intermediate rather than rational basis scrutiny to gender classifications?

2. Intermediate scrutiny potentially presents problems with affirmative action based on gender. Why should gender-based affirmative action be subject to lower scrutiny than racial affirmative action?

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2. Legislative Framework—Title IX of the Education Amendments of 1972

While the Civil Rights Act of 1964 prohibits discrimination based on gender in the area of employment, its education provisions apply only to race, religion, and national origin discrimination. 42 U.S.C. §2000e-2 (2006). Women’s rights activists later pressured lawmakers to address gender discrimination in education, and, in 1967, President Johnson issued an executive order to include discrimination based on sex as one of the prohibited bases of discrimination by federal contractors. Exec. Order No. 11,246, 41 C.F.R. 60 (1965), as amended in 32 C.F.R. 14303 (1967). Women professors then used this provision to challenge discrimination at public universities (all of whom receive federal grants and contracts). Due to the high costs of these new class action suits against public universities and the federal government, Congress began to focus in the early 1970s on the issue of sex bias and discrimination in education. Congress held several hearings and, in 1971, introduced legislation.

While Congress generally agreed that sex discrimination in education should end, many members feared that attempts to address discrimination might go too far. In particular, members feared that a prohibition on gender discrimination would require specific quotas. This fear resulted in the attachment of a floor amendment to the legislation that specifically indicated that the legislation would not require quotas. 20 U.S.C. §1681(b) (2006). The bill finally passed the House and Senate and was signed by President Nixon as Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§1681 et seq., commonly referred to as Title IX.

Below are the most important subsections and regulations enacted pursuant to them. In examining them, pay close attention to what does and does not constitute sex discrimination under the Act.

Title IX—Prohibition of Sex Discrimination

20 U.S.C. §§1681, 1682, 1686 (2006)

§1681. Sex

(a) Prohibition against discrimination; exceptions. No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except that:

(1) in regard to admissions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;

(2) in regard to admissions, this section shall not apply to Educational institutions commencing planned change in admissions [until after June 1973 and, if the institution has admitted only students of one sex and is carrying out an approved transition plan, the institution is exempted until 1978, or seven years after the institution begins an approved transition plan];

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(3) this section shall not apply to an educational institution which is controlled by a religious organization if the application…would not be consistent with the religious tenets of such organization;

(4) this section shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine;

(5) this section shall not apply [in regard to admissions] to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex;

(6) this section shall not apply to membership practices [of fraternities and sororities, YMCAs, YWCAs, Girl Scouts, Boy Scouts, Camp Fire Girls and other voluntary youth associations for persons under 19 years old];

(7) this section shall not apply to any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference;

(8) this section shall not preclude father-son or mother-daughter activities at an educational institution, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided for students of the other sex; and

(b) Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area: Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this title of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.

(c) “Educational institution” defined. For purposes of this title an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college, or department.

§1682. Federal Administrative Enforcement; Report to Congressional Committees

Each Federal department and agency which is empowered to extend Federal financial assistance to any education program is authorized and directed to effectuate the provisions of section 901 [(codified at 20 U.S.C. §1681)] by issuing rules, regulations, or orders of general applicability. No such rule,351 regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the agency concerned has advised the appropriate persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the House and Senate a full written report of the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.

§1686. Interpretation with Respect to Living Facilities

[N]othing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.

Title IX—Implementing Regulations

34 C.F.R. §§106.21, 106.22, 106.34, 106.40-106.43 (2012)

34 C.F.R. §106.21 Admission

(a) General. No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which this subpart applies.

(b) Specific prohibitions.

(1) In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which this subpart applies shall not:

(i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise;

(ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or

(iii) Otherwise treat one individual differently from another on the basis of sex.

(2) A recipient shall not administer or operate any test or other criterion for admission which has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question and alternative tests or criteria which do not have such a disproportionately adverse effect are shown to be unavailable.

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(c) Prohibitions relating to marital or parental status. In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which this subpart applies:

(1) Shall not apply any rule concerning the actual or potential parental, family, or marital status of a student or applicant which treats persons differently on the basis of sex;

(2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice which so discriminates or excludes;

(3) Shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and

(4) Shall not make pre-admission inquiry as to the marital status of an applicant for admission, including whether such applicant is “Miss” or “Mrs.” A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by this part.

34 C.F.R. §106.22 Preference in Admission

A recipient to which this subpart applies shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity which admits as students only or predominantly members of one sex, if the giving of such preference has the effect of discriminating on the basis of sex in violation of this subpart.

34 C.F.R. §106.34 Access to Classes and Schools

(a) General standard. Except as provided for in this section or otherwise in this part, a recipient shall not provide or otherwise carry out any of its education programs or activities separately on the basis of sex, or require or refuse participation therein by any of its students on the basis of sex.

(1) Contact sports in physical education classes. This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.

(2) Ability grouping in physical education classes. This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.

(3) Human sexuality classes. Classes or portions of classes in elementary and secondary schools that deal primarily with human sexuality may be conducted in separate sessions for boys and girls.

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(4) Choruses. Recipients may make requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex.

(b) Classes and extracurricular activities.

(1) General standard. Subject to the requirements in this paragraph, a recipient that operates a nonvocational coeducational elementary or secondary school may provide nonvocational single-sex classes or extracurricular activities, if—

(i) Each single-sex class or extracurricular activity is based on the recipient’s important objective—

(A) To improve educational achievement of its students, through a recipient’s overall established policy to provide diverse educational opportunities, provided that the single-sex nature of the class or extracurricular activity is substantially related to achieving that objective; or

(B) To meet the particular, identified educational needs of its students, provided that the single-sex nature of the class or extracurricular activity is substantially related to achieving that objective;

(ii) The recipient implements its objective in an evenhanded manner;

(iii) Student enrollment in a single-sex class or extracurricular activity is completely voluntary; and

(iv) The recipient provides to all other students, including students of the excluded sex, a substantially equal coeducational class or extracurricular activity in the same subject or activity.

(2) Single-sex class or extracurricular activity for the excluded sex. A recipient that provides a single-sex class or extracurricular activity, in order to comply with paragraph (b)(1)(ii) of this section, may be required to provide a substantially equal single-sex class or extracurricular activity for students of the excluded sex.

(3) Substantially equal factors. Factors the Department will consider, either individually or in the aggregate as appropriate, in determining whether classes or extracurricular activities are substantially equal include, but are not limited to, the following: the policies and criteria of admission, the educational benefits provided, including the quality, range, and content of curriculum and other services and the quality and availability of books, instructional materials, and technology, the qualifications of faculty and staff, geographic accessibility, the quality, accessibility, and availability of facilities and resources provided to the class, and intangible features, such as reputation of faculty.

(4) Periodic evaluations. The recipient must conduct periodic evaluations [every two years] to ensure that single-sex classes or extracurricular activities are based upon genuine justifications and do not rely on overly broad generalizations and that any single-sex classes or extracurricular activities are substantially related to the achievement of the important objective for the classes or extracurricular activities.

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(1) General Standard. Except as provided in paragraph (c)(2) of this section, a recipient that operates a public nonvocational elementary or secondary school that excludes from admission any students, on the basis of sex, must provide students of the excluded sex a substantially equal single-sex school or coeducational school.

(2) Exception. A nonvocational public charter school that is a single-school local educational agency under State law may be operated as a single-sex charter school without regard to the requirements in paragraph (c)(1) of this section.

(3) Substantially equal factors. Factors the Department will consider, either individually or in the aggregate as appropriate, in determining whether schools are substantially equal include, but are not limited to, the following: The policies and criteria of admission, the educational benefits provided, including the quality, range, and content of curriculum and other services and the quality and availability of books, instructional materials, and technology, the quality and range of extracurricular offerings, the qualifications of faculty and staff, geographic accessibility, the quality, accessibility, and availability of facilities and resources, and intangible features, such as reputation of faculty.

§106.40 Marital or Parental Status

(a) Status generally. A recipient shall not apply any rule concerning a student’s actual or potential parental, family, or marital status which treats students differently on the basis of sex.

(b) Pregnancy and related conditions.

(1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.

(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation so long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.

(3) A recipient which operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section shall ensure that the separate portion is comparable to that offered to non-pregnant students.

(4) A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan or policy which such recipient355 administers, operates, offers, or participates in with respect to students admitted to the recipient’s educational program or activity.

(5) In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student’s physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began.

§106.41 Athletics

(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors:

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;

(2) The provision of equipment and supplies;

(3) Scheduling of games and practice time;

(4) Travel and per diem allowance;

(5) Opportunity to receive coaching and academic tutoring;

(6) Assignment and compensation of coaches and tutors;

(7) Provision of locker rooms, practice and competitive facilities;

(8) Provision of medical and training facilities and services;

(9) Provision of housing and dining facilities and services;

(10) Publicity.

Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the356 Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.

§106.42 Textbooks and Curricular Material

Nothing in this regulation shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.

§106.43 Standards for Measuring Skill or Progress in Physical Education Classes

If use of a single standard of measuring skill or progress in physical education classes has an adverse effect on members of one sex, the recipient shall use appropriate standards that do not have that effect.

NOTES AND QUESTIONS

1. What is exempted from coverage under Title IX? What is included? Do the exemptions indicate approval or disapproval for particular policies? Do such exemptions reflect notions of what is equality? Has Congress and the Department of Education avoided the most important and controversial issues?

2. Congress deliberately modeled Title IX on Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs or activities that receive federal funds. The statutes both condition federal funding on a recipient’s promise not to discriminate. Because of this close connection between the statutes, courts use Title VI standards to interpret Title IX. See, e.g., Cannon v. Univ. of Chicago, 441 U.S. 677, 694-698 (1979). Title IX’s various exemptions, however, are distinct and no analogous exemptions are found in Title VI.

3. Note that Title IX and its implementing regulations represent a floor for protections against discrimination rather than a ceiling. The Constitution may prohibit activities that Title IX would permit. For instance, VMI’s single-sex program would have been permissible under Title IX, but the Court struck it down under equal protection.

4. Pay close attention to §1681(b) (concerning quotas), 34 C.F.R. §106.21(b)(i)-(iii) (concerning preferences, ranking, and quotas), and 34 C.F.R. §106.21(2) (prohibition of criteria with disparate impacts). Do these provisions reflect the same concerns expressed in the section on race-based affirmative action? Are these concerns equally relevant to gender?

5. How does 34 C.F.R. §106.34 reflect notions of gender difference? Are such differences justified? Many argue that 34 C.F.R. §106.34(b) and 34 C.F.R. §106.34(c) permit a “separate but equal” system. See, e.g., Gary J. Simson, Separate but Equal and Single-Sex Schools, 90 Cornell L. Rev. 443, 453 (2005). Do you agree? How do the regulations place limits and standards to determine whether separate is really equal?

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6. Title IX applies only to recipients of federal funds. In Grove City College v. Bell, 465 U.S. 555 (1984), the Supreme Court examined the language and legislative history of Title IX and held that any funds the government furnishes, either directly or indirectly, constitute government federal financial assistance. Id. at 568 n.18. Thus, the Court held that private institutions whose students receive federal financial aid (which eventually reaches the operating budget of the school) can be subject to the requirements of Title IX. Id. at 563-570. The Court, however, limited the application of Title IX to the particular program or department within the educational institution that receives the federal funds. Id.

In response to the Grove City holding, Congress passed the Civil Rights Restoration Act of 1987 to “restor[e] the prior, consistent and long-standing executive branch interpretation of broad, institution-wide application” of Title IX. Pub. L. No. 100-259, 1988 S. 557. Now, an entire educational institution is deemed a recipient of federal funds and thus subject to Title IX, even if only a subdivision of the school receives federal funds. As a practical matter, operating an institution of higher education without participating in a federal program is impossible because most students cannot afford to attend without the benefit of federal financial aid.

7. Federal administrative enforcement mechanisms, created by 20 U.S.C. §1682, ensure compliance with Title IX. The text of Title IX is silent as to whether a private cause of action exists to enforce the statute in court. The Supreme Court in Cannon v. University of Chicago, 441 U.S. 677 (1979), however, found that Congress intended to imply a private cause of action. Id. at 694-696. The Court subsequently held that Title IX also entitles a plaintiff to pursue a claim for monetary damages. Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60 (1992).

8. Title IX regulations exempt textbooks and curricular materials from the purview of Title IX. See 34 C.F.R. §106.42. The exemption was adopted as a result of First Amendment concerns and concerns about the scope of federal power to make curricular decisions. See Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 40 Fed. Reg. 24135 (June 4, 1975). Are such concerns justified? Does the exemption leave significant gender discrimination untouched?

Various scholars have found that gender-based stereotypes and bias are prevalent in public school curriculum, textbooks, and practices. See, e.g., Equity in the Classroom: Toward Effective Pedagogy for Girls and Boys (P.F. Murphy & C.V. Gipps eds., 1996); Carol Amyx, Sex Discrimination: The Textbook Case, 62 Cal. L. Rev. 1312, 1312-1314 (1974) (discussing extent of sex stereotyping in textbooks); Roger Clark et al., Women of the World, Re-Write! Women in American World History High School Textbooks from the 1960s, 1980s, and 1990s, 69 Soc. Educ. 41 (2005); Lorraine Evans & Kimberly Davies, No Sissyboys Here: A Content Analysis of the Representation of Masculinity in Elementary School Reading Textbooks, 42 Sex Roles 255 (2000); Jennifer S. Hendricks & Dawn Marie Howerton, Teaching Values, Teaching Stereotypes: Sex Education and Indoctrination in Schools, 13 U. Pa. J. Const. L. 587 (2011) (discussing sex stereotyping in sexual education curricula); see also Lani Guinier et al., Becoming Gentlemen: Women, Law School, and Institutional Change (1997) (analyzing gender bias in law school). In response, some institutions, school districts, and states have endeavored to require history and358 social studies curriculum that demonstrates the positive achievements of women. See, e.g., Cal. Educ. Code §51204.5 (1988); Fla. Stat. §233.061 (1999); 105 Ill. Comp. Stat. 5/27-20.5 (2000); Tenn. Code Ann. §49-6-1006 (1999).

The following sections address the application of the constitutional and statutory standards to those specific contexts where gender-based disputes tend to arise in education law. But as a preface, it is important to recognize the general historical backdrop in which these disputes arise. Public institutions denied women access to school throughout the colonial era and during the nation’s early years. In the nineteenth century, women began to have access to coeducational primary schooling, but their education was largely limited to and focused on preparing to become wives and mothers. Secondary education was not an option. Not until the mid-nineteenth century did public entities establish high schools for women. Starting in the post-Reconstruction era and continuing into the beginning of the twentieth century, more and more secondary schools were established for women or became coeducational. But both the single-sex and coeducational schools were racially segregated. Thus, the experience of white and African American women differed significantly. Throughout the postwar period and continuing until Brown v. Board of Education, 347 U.S. 483 (1954), segregated schools for African American students were often coeducational due to limited resources and a lesser concern for the protection of black women’s sexuality.

The first major turning point for women came with the First and Second World Wars, which created a demand for skilled women in the workforce. This reality, combined with the growing recognition of the value of secondary education, led many states to include women in compulsory education statutes, provide single-sex institutions for women, and establish coeducational environments. These efforts expanded various educational opportunities for women, but not until the adoption of Title IX of the Education Amendments of 1972 did the law prohibit discrimination in education admissions on the basis of gender.

C. ADMISSIONS

Admissions decisions necessarily entail the examination of several quantitative factors, including grade point averages (GPAs) and standardized test scores, but admissions decisions also often involve myriad subjective judgments based on essays, extracurricular work, academic writing, and students’ overall ability to be a “good fit” in the program. The prevalence of these subjective judgments, along with low admission rates in general, makes proving that an admissions denial was based on gender (and not some other factor) challenging. As the following case demonstrates, the determination of whether an applicant has359 been discriminated against in admissions on the basis of gender is a highly fact-specific inquiry requiring plaintiffs not only to prove prima facie gender discrimination, but also to refute defendant claims that the denial was for a permissible reason.

The idea of gender discrimination in admissions may seem curious to many because, unlike race where animus has been a serious historical problem, gender discrimination is not generally understood or perceived in terms of animus. Nonetheless, females have suffered from educational exclusion. Their exclusion arises from both explicit and implicit notions that women are not as well suited to certain careers or subjects as men. The following case reveals that ideas of this sort persist and affect the evaluation of women for admission to educational programs. As you read the following case, consider how prevalent gender bias might be in admissions programs and whether we have any reliable means to discover and remedy it.

Tingley-Kelley v. Trustees of the University of Pennsylvania

677 F. Supp. 2d 764 (E.D. Pa. 2010)

Admission to the University of Pennsylvania School of Veterinary Medicine (“Penn Vet”) is extremely competitive. In 2007, Penn Vet’s acceptance rate of approximately 11% was equivalent to that of Penn’s Law School. In such a competitive process, it would seem that an applicant alleging that she was denied admission because of her gender would face a daunting task inasmuch as there are almost always applicants arguably more qualified and there are almost always legitimate reasons for favoring one well-qualified applicant over another. But when a plaintiff presents direct evidence of discrimination, the case must be left to a jury to decide. This is such a case.

Plaintiff Kimberley Tingley-Kelley applied to Penn Vet six times from 2002 until 2007 and was rejected each time. Ms. Tingley-Kelley alleges that she was denied admission to Penn Vet because of her gender, in violation of Title IX.

Currently before the Court is Penn Vet’s Motion for Summary Judgment.

I. Factual and Procedural History

A. Penn Vet’s Admissions Process

[D]uring the years in question, the Penn Vet admissions process is as follows. First, the Associate Dean for Admissions and the Associate Director for Admissions review all applications and, based on their experience and awareness of the objective characteristics of the previous year’s class, they eliminate what they consider the approximate bottom one-third from consideration.

Second, the Admissions Committee [reviews] the remaining two-thirds of the applications to decide which applicants should be interviewed for possible admission. The Committee members review the objective factors in the applications, including college and, if applicable, graduate school attended, grade point360 average (GPA) and Graduate Record Examination (GRE) scores, as well as the applicants’ veterinary and other animal-related experience, work history, personal statements, recommendations, and other miscellaneous factors. The Quantitative score on the GRE is generally more important than the Verbal score because it is considered an indicator of how an applicant will handle science courses. To make it easier for members of the Admissions Committee to compare applicants, Penn Vet adds the GRE percentiles together. With respect to GPA, the last 45 credit hours GPA, especially in science courses, is separately considered and can be a positive factor if applicants demonstrate improvement over their overall GPA.

As they review an application, Committee members make notes on an Applicant Review form, and recommend whether a candidate should be interviewed or not. Committee members look not only for high achievement, but also for distinguishing characteristics and experiences. Through this process approximately one-half of the remaining applications are rejected, and the other half, or approximately one-third of the original number, are selected for interviews.

On interview days, the applicants selected for interviews mingle with student members of the Admissions Committee, and interview with two faculty/alumni members of the Admissions Committee, one of whom has read the candidate’s application, and the other of whom has not seen the application itself. The interview is a critical factor in the admission decision. Following the day’s interviews, the Committee members meet to review the interviewees, discuss their recommendations, and vote on the candidates. Some are denied admission, some are accepted, and some are placed in a hold status for an “alternate” list.

B. Ms. Tingley-Kelley’s Background and Applications to Veterinary School

Ms. Tingley-Kelley graduated from the University of Massachusetts, Boston in 1989. Her overall GPA was 2.67. [She later took numerous classes at other schools, completed a Master’s degree at Temple University, and] her overall GPA had risen to 2.98.

Ms. Tingley-Kelley took the GRE examination in 2001 and again in 2005. In 2001, she scored 470 on the Verbal (the 51st percentile) and 600 on the Quantitative (the 46th percentile). In 2005, she scored 600 on the Verbal (84th percentile), and 570 on the Quantitative (39th percentile).

In total, Ms. Tingley-Kelley applied to Penn Vet six times, from 2002 to 2007. Penn Vet denied Ms. Tingley-Kelley admission without an interview four times (2002, 2003, 2005 and 2007), and twice denied her admission following an interview (2004 and 2006).

After being rejected [the first time], Ms. Tingley-Kelley elected to meet with Malcolm Keiter, Associate Dean of Admissions, for post-denial counseling. At this counseling session, Dean Keiter told her that it was possible that she would be admitted to Penn Vet, and that she should continue to strengthen her application by working towards completing a Master’s degree in biology at Temple University. Dean Keiter also told Ms. Tingley-Kelley that the Admissions Committee would not be as concerned about her GRE scores, given that the purpose361 of the GRE is to predict graduate school success and she was already doing well in her graduate program. Dean Keiter also pointed out that her GRE scores were within the range that was acceptable for admission. Finally, Dean Keiter assured Ms. Tingley-Kelley that the Admissions Committee was not particularly interested in the coursework she completed more than a decade before applying to Penn Vet, but that the Committee would focus instead on her accomplishments since that time.

Following her 2002 application to Penn Vet, Ms. Tingley-Kelley continued her graduate work at Temple. After her application was rejected [the second time], Ms. Tingley-Kelley again met with Dean Keiter for post-denial counseling. During this counseling, Dean Keiter told Ms. Tingley-Kelley that she was “doing all the right things” and that in her next application, she should discuss her husband’s active duty status in the United States Air Force in order to explain why she had moved around so much.

By the time of her third application, for admission in the Fall of 2004, Ms. Tingley-Kelley had finished her M.S. in Biology at Temple with highest honors, had completed a successful oral defense of her thesis, and she had given birth to her daughter. Her graduate work at Temple consisted exclusively of science courses and her last 45 credit hours GPA was 3.73. Her graduate GPA was 3.705, raising her overall GPA to 3.05. When she applied, she heeded Dean Keiter’s advice and included information in her personal statement regarding her husband’s active duty status in the military.

Ms. Tingley-Kelley passed the first “cut” and two members of the Admissions Committee, Dr. Ben Martin and Dr. Adrian Morrison, reviewed her application. The reviewers recommended that she be interviewed.

Ms. Tingley-Kelley was subsequently interviewed by Dr. Lori Mann and Dr. Ben Martin. In answer to Dr. Martin’s questions regarding Ms. Tingley-Kelley’s experience in different states, she noted that her husband was on active duty in the United States Air Force. Dr. Martin commented that Ms. Tingley-Kelley had “a lot on her plate” and asked what she would do if her husband were suddenly deployed, and also asked how she would deal with the care of her daughter without her husband around. Dr. Mann questioned whether Ms. Tingley-Kelley could handle the rigors of the program given Ms. Tingley-Kelley’s personal situation with a child and a husband on active duty in the military. Dr. Mann and Dr. Martin made notations on their Applicant Review forms regarding Tingley-Kelley’s family situation as a mother with young children and a husband on active duty in the Air Force. They each recommended that Ms. Tingley-Kelley be denied admission, and the Admissions Committee agreed.

After her interview ended, on the advice of Dr. Mann and Dr. Martin, Ms. Tingley-Kelley spoke with some of the student representatives on the Admissions Committee regarding the program. One student told Ms. Tingley-Kelley that Penn Vet “probably would not waste a spot on a woman who has a baby and a husband on active duty.”

After Ms. Tingley-Kelley was rejected in 2004, she attended post-denial counseling with Dean Keiter, who encouraged her to reapply the following year, and suggested that she get more small animal experience to “show continued interest.”

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Ms. Tingley-Kelley applied for a fourth time for the Fall 2005 academic year. When it became apparent that she had not been selected for an interview, Ms. Tingley-Kelley emailed Dean Keiter to inquire about the status of her application. He responded that the Admissions Committee wanted to know what she had done to improve her previous application. She informed Dean Keiter that her research was recently published in a major scientific journal, that she had been teaching basic science courses, had taken a class, had given birth to a son, and had been on maternity leave. Two weeks later, she received a rejection letter from Penn Vet.

Ms. Tingley-Kelley again attended post-denial counseling with Dean Keiter. Frustrated, Ms. Tingley-Kelley asked Dean Keiter whether she was wasting her time in applying to Penn Vet. Dean Keiter told her that she was “absolutely not wasting time” in continuing to apply to Penn Vet, that she was more than competitive, and that having been granted an interview previously, she would be in the “very competitive” category. Dean Keiter explained that she had been rejected because the Admissions Committee was unclear as to what she had done to improve her previous application. Dean Keiter suggested that Ms. Tingley-Kelley write “stay at home” mother in the occupation section of the application in order to explain why she had been unable to gain more veterinary experience. He also suggested that she explain her marital and parental status in her personal statement so that the Admissions Committee would know “what she has been up to.”

Ms. Tingley-Kelley re-applied in 2006. In her application, she included “stay at home mother” on her application, and discussed her martial and parental status in her personal statement. This time, she was granted an interview.

While she was waiting for her interview, she spoke with another nontraditional student, a lawyer, who was changing careers. This applicant had applied and been rejected the previous year, but was encouraged by Dean Keiter, in a personal note and by telephone, to reapply. She asked this applicant what Dean Keiter had suggested he do to “show continued interest” in the field of veterinary medicine, to which he replied, “Nothing. I went back and practiced law and paid some bills.” She then asked him how much animal experience he had to obtain, and he replied that he worked for a “couple of buddies who were vets, but mostly ended up giving them legal advice.”

Ms. Tingley-Kelley’s application was reviewed by Dr. Jill Beech and Dr. Ben Martin. On her Applicant Review form, Dr. Beech noted Ms. Tingley-Kelley’s age, 38, that “she would be at school w/2 young children,” and that she had “concerns about how she’ll do in school esp. w/family, etc.” Dr. Martin wrote that it “will be a tough row to hoe,” and that it was “time to fish or cut bait.” Nevertheless, they both recommended that Ms. Tingley-Kelley be interviewed.

Ms. Tingley-Kelley was interviewed by Dr. Gary Althouse and Dr. Colin Harvey. During this interview, questions regarding Ms. Tingley-Kelley’s background and her husband’s military career were discussed. Dr. Harvey asked why Ms. Tingley-Kelley did not move back to Boston, where she would have more family support. Ms. Tingley-Kelley responded that she did not believe her personal situation should be a factor considered in the admissions decision. Dr. Althouse asked what Ms. Tingley-Kelley had done in the past363 year to improve her application, to which she replied that she had taken Calculus and received an “A,” had volunteered at a small animal veterinary hospital, and continued to teach basic science labs at Temple University.

Her application was rejected a week after this interview. Following this denial of her application, she wrote a letter requesting reconsideration because of the alleged discriminatory treatment she received during her interview. Her request for reconsideration was denied.

Ms. Tingley-Kelley applied for the sixth and final time for admission in the Fall of 2007. Her application was rejected without an interview and she did not attend post-denial counseling. The only change in her 2007 application from 2006 was some additional teaching experience.

In June 2006, Dean Keiter was quoted in an article published in The Hartford Courant entitled, “At Vet Schools, Women Dominate.” Dean Keiter stated that if he were given equal male and female applicants, Penn Vet “would probably take the man because they are so hard to get.” In the same interview, Dean Keiter stated that “men have a lot of options instead of college. Women don’t. They have to go to college to get anywhere.” He also stated that “by the time [women] graduate and get through an internship, it’s time to have children.”

III. Discussion

A. Title IX Gender Discrimination

Ms. Tingley-Kelley proceeds under two theories of gender discrimination. First, she claims that she was discriminated against simply because of her gender. Second, she claims that she was discriminated against as a woman who has young children and a husband in the military. Her second theory of discrimination has been labeled “sex-plus” discrimination, which is discrimination based on sex plus another characteristic.

“Sex-plus” discrimination cases were first identified by the Supreme Court in Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971), where the Court held that Title VII does not permit an employer to have “one hiring policy for women and another for men—each having pre-school-age children.” At root, however, “sex-plus” discrimination is simply a form of gender discrimination. The relevant inquiry under either theory is whether the plaintiff presents evidence of sex discrimination sufficient to create a genuine issue of material fact.

i. Applicable Legal Framework

Title IX prohibits educational institutions from engaging in sex discrimination in admissions. To establish a claim under Title IX, a plaintiff must show that (1) she was excluded from participation in, denied the benefits of, or subjected to discrimination in an educational program; (2) that the program receives federal financial assistance; and (3) that her exclusion was on the basis of her gender.

Here, it is undisputed that Penn Vet denied admission to Ms. Tingley-Kelley and that Penn Vet receives federal financial assistance. The disputed issue is whether Ms. Tingley-Kelley’s exclusion from Penn Vet was because of her gender.

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Title IX does not provide an analytical framework for the evaluation of gender discrimination claims. As a result, in analyzing whether a plaintiff has presented evidence under Title IX sufficient to survive summary judgment, courts understandably often look to employment discrimination jurisprudence under Title VII. Indeed, the Court finds Title VII jurisprudence to be particularly instructive in this case because Title IX law regarding discrimination in admissions is not well-developed.⁷

In the Title VII context, disparate treatment claims fall into two categories, depending on whether there is direct evidence of discrimination, or whether the evidence of discrimination is circumstantial. Where there is direct evidence of discrimination, courts apply the “mixed motives” test set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Where there is circumstantial evidence of discrimination, courts apply the burden shifting framework developed in McDonnell Douglas v. Green, 411 U.S. 792 (1973).

Ms. Tingley-Kelley purports to have both direct and circumstantial evidence of gender discrimination.

ii. Direct Evidence of Discrimination

As noted, when a plaintiff presents direct evidence of discrimination, the case is appropriately analyzed under the “mixed motives” analysis established by the Supreme Court in Price Waterhouse. Under the modified Price Waterhouse standard, a defendant is liable for discrimination upon proof that a forbidden criterion “was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §2000e-2(m). Once a plaintiff shows that there is a genuine issue of material fact as to whether discrimination was a motivating factor for an employment practice, the burden of production and persuasion shift to the defendant, and summary judgment should ordinarily be denied.

A plaintiff attempting to prove discrimination with direct evidence faces a “high hurdle.” The direct evidence must demonstrate that the “decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.” Derogatory comments or stray remarks in the workplace that are unrelated to employment decisions, even when uttered by decision makers, do not constitute direct evidence of discrimination.

Ms. Tingley-Kelley presents direct evidence that Admissions Committee members at Penn Vet considered her status as a mother with young children and a husband in the Air Force in their decision to reject her applications in 2004 and 2006. The notes on Ms. Tingley-Kelley’s Application Review forms reflect ostensible concerns Admissions Committee members had about whether she could handle the rigors of Penn Vet’s academic program, given her childcare responsibilities. For example, in 2006, Dr. Beech noted on her review form for Ms. Tingley-Kelley that Dr. Beech had “concerns about how she’ll do in school esp. w/family, etc.” and that Ms. Tingley-Kelley “would be at school w/2 young365 children.”⁸ That same year, Dr. Martin wrote that it “will be a tough row to hoe,” a comment that could be reasonably construed, in the context of the other evidence in this case, as referring to the difficulty Ms. Tingley-Kelley would have in juggling school and family.

Ms. Tingley-Kelley testified that her childcare responsibilities were discussed at length during each of her admission interviews. One interviewer allegedly asked why Ms. Tingley-Kelley did not move back to Boston, where she would have more family support. Another questioned whether she was prepared to handle the rigors of the program and care for her daughter if her husband were suddenly deployed.

In total, the notes on her Application Review forms and the comments and questions during her interviews, viewed in the light most favorable to Ms. Tingley-Kelley, could demonstrate that Admissions Committee members discriminated against her on the basis of her gender by stereotyping her as a busy mother of young children who would have a difficult time handling both graduate school and her childcare responsibilities.

Appellate courts in other jurisdictions have found such stereotypical comments about women as caregivers to be sufficient to overcome summary judgment even without evidence that the plaintiff was treated differently from similarly situated males. For example, in Chadwick, the plaintiff brought a “sex-plus” discrimination claim against her employer, alleging that she did not receive a promotion because of a sex-based stereotype that women who are mothers, particularly of young children, neglect their jobs in favor of their presumed childcare responsibilities. At the time she was denied the promotion, the plaintiff in Chadwick was a mother of an 11-year-old son and six-year-old triplets. In considering whether plaintiff had presented enough evidence to permit a finding of discrimination, the court adopted a “case by case” analysis, rather than the strict “mixed motive” or McDonnell Douglas framework, and held that, “[g]iven what we know about societal stereotypes regarding working women with children,” stereotypical comments directed toward plaintiff regarding working women with children could lead a reasonable jury to conclude that sex discrimination was behind her employer’s decision not to promote her. One comment the court found particularly revealing was plaintiff’s supervisor’s explanation as to why plaintiff did not get the promotion: “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.”

The comments in Ms. Tingley-Kelley’s case—i.e. “concerns about how she’ll do in school esp. w/family, etc.” and it “will be a tough row to hoe”—are strikingly similar to those found in Chadwick to be evidence of impermissible, sex-based stereotyping. In fact, Dr. Martin’s comment that Ms. Tingley-Kelley had “a lot on her plate” is the exact same comment the court in Chadwick found so troubling as perpetuating the stereotype that women with children may not366 be able to juggle their professional and childcare responsibilities. Finding Chadwick persuasive, this Court holds that such stereotyping, without evidence of how similarly situated male applicants were treated by Penn Vet, is sufficient evidence to support an inference of gender discrimination. After all, the ultimate issue in any discrimination case is whether the plaintiff, as an individual, was discriminated against. When there is direct evidence of discrimination, comparative evidence, while relevant, is not necessary.¹¹

In addition, contrary to Penn Vet’s contention, the notes and comments in this case, arguably were more than general statements about family responsibilities or stray remarks unrelated to the decision to deny Ms. Tingley-Kelley admission. The notes on Ms. Tingley-Kelley’s Applicant Review forms were made by members of the Admissions Committee in the course of admissions interviews and these forms were presumably reviewed by the entire Committee before Ms. Tingley-Kelley was denied admission. The comments and questions during Ms. Tingley-Kelley’s interviews in 2004 and 2006 were made by members of the Admissions Committee on the same day as the respective decisions to deny Ms. Tingley-Kelley’s applications. Based on these comments and questions, and their timing, a jury could infer that the decision to deny her admission was motivated by impermissible, sex-based factors.

Penn Vet argues that it would have reached the same decision denying Ms. Tingley-Kelley’s applications absent any discrimination because she was not objectively qualified to gain admission. However, as Penn Vet has acknowledged, Ms. Tingley-Kelley’s GRE scores and GPA fell within the range of scores for applicants who were ultimately accepted in each of the years she applied. During the years in question, applicants accepted had [both Verbal GRE scores and Quantitative GRE score] lower than Ms. Tingley-Kelley’s scores. Therefore, it cannot be convincingly argued that Penn Vet did not discriminate against Ms. Tingley-Kelley because no one with objectively less compelling academic credentials was admitted.

Because this case involves direct evidence that may amount to discrimination, Penn Vet’s evidence that Ms. Tingley-Kelley was less qualified than other applicants does not shift the burden to Ms. Tingley-Kelley to present evidence of pretext under the McDonnell Douglas framework. Here, involving direct evidence of discrimination, Penn Vet’s comparative evidence shows that there will be a jury issue as to whether, if a jury finds that gender discrimination was a factor in the denials of Ms. Tingley-Kelley’s applications, Penn Vet has met its burden of proving that it would have denied her applications under any extant circumstances.

In sum, Ms. Tingley-Kelley has demonstrated that there is a genuine issue of material fact as to whether her status as a mother of two young children and wife of an active Air Force serviceman was a motivating factor in the rejection of her applications for admission. Although Penn Vet offers evidence, including367 significant evidence that a jury could ultimately find quite convincing, that Ms. Tingley-Kelley would have been denied admission without regard to her parental or marital status, a reasonable jury may otherwise find that gender was a motivating factor in denying her admission. Accordingly, Penn Vet’s Motion for Summary Judgment must be denied.

NOTES AND QUESTIONS

1. Are the questions asked of Tingley-Kelley legitimate questions related to her potential for success in the program?

2. Tingley-Kelley argued gender discrimination on the basis of two theories: that she was discriminated because of her gender and that she experienced “sex-plus” discrimination. Sex-plus discrimination means that a person is subjected to disparate treatment based not solely on one’s sex, but rather on one’s sex when “considered in conjunction with a second characteristic.” Fisher v. Vassar Coll., 70 F.3d 1420, 1433 (2d Cir. 1995). The most common examples of sex-plus discrimination are marital status, childbearing ability, or status as a mother. See Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (finding discrimination when business has different hiring policies for women and men with young children).

3. What is the difference between “direct evidence of discrimination” and “circumstantial evidence of discrimination”? In the absence of direct evidence, Tingley-Kelley may have had a difficult time making a circumstantial claim of discrimination given that her test scores were lower than most admitted students.

4. Penn Vet argued that Tingley-Kelley was rejected because she was not objectively qualified for the program, an argument the court rejected because others were admitted with lower test scores and the direct evidence of discrimination in the admissions committee’s comments and notes. Considering that admissions decisions often entail subjective and qualitative evaluations, what evidence would one need to refute the claim of a lack of objective qualifications when there are no discriminatory notes? What burden would Tingley-Kelley need to overcome if her test scores were on the lower range of the scores of the applicants admitted? Given the difficulty in obtaining this type of evidence, few cases like Tingley-Kelley’s are brought.

PROBLEM

Monroe School District operates a vocational program in mechanics, which offers students the opportunity to repair cars. Student interest in the course recently increased, and the district no longer has sufficient staff and space to accommodate everyone. Thus, the district instituted an interview process to determine enrollment. The teacher is to assess students’ interest in the course, capacity to do the work, and likelihood of putting their knowledge to work in the future. 40 boys and 15 girls applied for 30 available spots. 28 boys and 2 girls368 were admitted. The interviewer’s notes reveals that most girls were extensively questioned about their interest and future plans. Most could offer general thoughts, but when pressed, only three offered definite answers. The definiteness among boys was unclear, as only a few were pressed on the issue. The notes also reference the general height and weight of all students. The two girls who were admitted weigh more than all but two other girls.

Sandra, a 16-year-old girl, is now convinced she wants to become a mechanic, but was not admitted. She is not sure that suing the school district is in her best interest, but wants to know whether she might have a claim. Please advise her on both legal and practical issues.

D. SINGLE-SEX EDUCATION

Single-sex schools and programs by their very nature exclude individuals based on gender. Over the past few decades, the constitutional and statutory validity of single-sex programs have been subject to intense debate. Recognizing both the long history of single-sex education and gender stereotypes that deprive women of access to education, courts have struggled to determine whether single-sex programs are discriminatory or alleged gender differences in learning styles are “real.”

One of the early important cases evaluating the legality of single-sex education was Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3d Cir. 1976), aff’d, 430 U.S. 703 (1977) (per curiam), where the Philadelphia public school system operated, along with its various coeducational schools, a public high school for women and a public high school for men. The plaintiff argued that the all-women school was inferior to the all-men school and thus deprived females of equal access in violation of Title IX. The Third Circuit noted that, although in some instances Title IX would prohibit single-sex education, the Act explicitly exempted single-sex schools from the prohibitions set forth in 20 U.S.C. §1681(a)(1)-(5). The court then examined the constitutionality of single-sex education. It first reasoned that the school district’s single-sex schools did not result in differential treatment or unequal opportunity because enrollment in the single-sex schools was voluntary and coed schools were available. Thus, applying rational basis review based on Reed v. Reed, 404 U.S. 71 (1971), the court found that the record contained “sufficient evidence to establish that a legitimate educational policy may be served by utilizing single-sex high schools.” Id. at 888.

The dissent criticized the majority opinion as employing the same “separate but equal” analysis as Plessy v. Ferguson, which Brown v. Board of Education later rejected, and argued that the legislative history indicated that Congress intended to prohibit “dual educational systems.” Id. at 889-894 (Gibbons, J., dissenting). The dissent further emphasized that the evidence did not establish that separate369 but equal education was substantially related to producing educational benefits. Id. at 896 (Gibbons, J., dissenting).

The perception that the all-boys and all-girls schools were “comparable in quality, academic standing, and prestige” was essential to the majority opinion in Vorchheimer. The court recognized that the science facilities at Central high school were “superior” compared to the facilities at the all-girls school, but the court nonetheless held that the schools were equal. Id. at 882. Two years later, however, a Pennsylvania state court found significant differences that made the all-male school superior to the all-female school and ordered the admission of women into Central High. Newberg v. Bd. of Pub. Educ., 26 Pa. D. & C. 3d 682 (Ct. Comm. Pl. Phila. Cnty. 1983), appeal quashed, 478 A.2d 1352 (Pa. Super. Ct. 1984).

Vorchheimer sparked significant debate as to whether separate can ever be equal in single-sex education. Many commentators argued that the Vorchheimer majority’s theory of equal benefits was a revival of the doctrine of “separate but equal” from the Plessy v. Ferguson decision. See, e.g., Robert N. Davis, Diversity: The Emerging Modern Separate but Equal Doctrine, 1 Wm. & Mary J. Women & L. 11, 29-49 (1994); Nancy Levit, Embracing Segregation: The Jurisprudence of Choice and Diversity in Race and Sex Separatism in Schools, 2005 U. Ill. L. Rev. 455 (2005); Kathleen M. Sullivan, Sins of Discrimination: Last Term’s Affirmative Action Cases, 100 Harv. L. Rev. 78 (1986); Cass R. Sunstein, Three Civil Rights Fallacies, 79 Cal. L. Rev. 751 (1991). Others also emphasized that much of the initial growth in single-sex education came in response to call for the racial desegregation of schools and the fear that desegregation could lead to interracial marriage. See generally Serena Mayeri, The Strange Career of Jane Crow: Sex Segregation and the Transformation of Anti-Discrimination Discourse, 18 Yale J.L. & Human. 187 (2006). In the years following Brown v. Board of Education, many states and school districts in the South, anticipating the end of Jim Crow, passed laws to authorize sex segregation in public schools, which courts upheld. See, e.g., id. at 196, 209.

It was not until 1982 in Mississippi University for Women v. Hogan, however, that the Supreme Court took up the issue of single-sex education. In the intervening years, the Court had decided Fronteiro v. Richardson, 411 U.S. 677 (1973), in which the plurality indicated that “classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to strict judicial scrutiny.” Id. at 688. While not bound by the plurality’s position, the Court in Hogan was poised to evaluate single-sex education with more skepticism than previous courts. Ironically, Hogan was also factually distinct from previous challenges in that this time the complaining party was a male seeking admission to an all-female nursing program. As you read the case, pay close attention to the competing equal protection arguments and the important governmental objectives alleged. Is the state actually acting for the benefit or detriment of women? Are men disadvantaged in any meaningful way? Is this program just an example of a historical artifact that society has been slow to remove, or does it serve important purposes that we should not quickly dismiss?

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Mississippi University for Women v. Hogan

458 U.S. 718 (1982)

Justice O’Connor delivered the opinion of the Court.

In 1884, the Mississippi Legislature created the Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi. The school, known today as Mississippi University for Women (MUW), has from its inception limited its enrollment to women. In 1971, MUW established a School of Nursing, initially offering a 2-year associate degree. Three years later, the school instituted a 4-year baccalaureate program in nursing, and today also offers a graduate program.

Respondent, Joe Hogan, applied for admission to the MUW School of Nursing’s baccalaureate program. Although he was otherwise qualified, he was denied admission because of his sex. School officials informed him that he could audit the courses in which he was interested, but could not enroll for credit.

We begin our analysis aided by several firmly established principles. Our decisions establish that the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an “exceedingly persuasive justification.” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979). The burden is met only by showing at least that the classification serves “important governmental objectives, and that the discriminatory means employed” are “substantially related to the achievement of those objectives.” Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980).

Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.

If the State’s objective is legitimate and important, we next determine whether the requisite direct, substantial relationship between objective and means is present. The purpose of requiring that close relationship is to assure that the validity of a classification is determined through reasoned analysis, rather than through the mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women.

III

The State’s primary justification for maintaining the single-sex admissions policy of MUW’s School of Nursing is that it compensates for discrimination371 against women, and therefore constitutes educational affirmative action. As applied to the School of Nursing, we find the State’s argument unpersuasive.

In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened. However, we consistently have emphasized that the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.

It is readily apparent that a State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification. Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing when the MUW School of Nursing opened its door, or that women currently are deprived of such opportunities. In fact, in 1970, the year before the School of Nursing’s first class enrolled, women earned 94 percent of the nursing baccalaureate degrees conferred in Mississippi and 98.6 percent of the degrees earned nationwide. When MUW’s School of Nursing began operation, nearly 98 percent of all employed registered nurses were female.

Rather than compensate for discriminatory barriers faced by women, MUW’s policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job. By assuring that Mississippi allots more openings in its state-supported nursing schools to women than it does to men, MUW’s admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy. Thus, we conclude that, although the State recited a “benign, compensatory purpose,” it failed to establish that the alleged objective is the actual purpose underlying the discriminatory classification.

The policy is invalid also because the State has made no showing that the gender-based classification is substantially and directly related to its proposed compensatory objective. To the contrary, MUW’s policy of permitting men to attend classes as auditors fatally undermines its claim that women, at least those in the School of Nursing, are adversely affected by the presence of men. The uncontroverted record reveals that admitting men to nursing classes does not affect teaching style, that the presence of men in the classroom would not affect the performance of the female nursing students, and that men in coeducational nursing schools do not dominate the classroom. In sum, the record in this case is flatly inconsistent with the claim that excluding men from the School of Nursing is necessary to reach any of MUW’s educational goals.

Thus, considering both the asserted interest and the relationship between the interest and the methods used by the State, we conclude that the State has fallen far short of establishing the “exceedingly persuasive justification” needed to sustain the gender-based classification. Accordingly, we hold that MUW’s policy of denying males the right to enroll for credit in its School of Nursing violates the Equal Protection Clause of the Fourteenth Amendment.

372 Justice Powell, with whom Justice Rehnquist joins, dissenting.

[R]espondent [is not] significantly disadvantaged by MUW’s all-female tradition. His constitutional complaint is based upon a single asserted harm: that he must travel to attend the state-supported nursing schools that concededly are available to him. [T]here is, of course, no constitutional right to attend a state-supported university in one’s home town. Thus the Court, to redress respondent’s injury of inconvenience, must rest its invalidation of MUW’s single-sex program on a mode of “sexual stereotype” reasoning that has no application whatever to the respondent or to the “wrong” of which he complains.

[T]he Court errs seriously by assuming—without argument or discussion—that the equal protection standard generally applicable to sex discrimination is appropriate here. That standard was designed to free women from “archaic and overbroad generalizations.” In no previous case have we applied it to invalidate state efforts to expand women’s choices. [T]he contrary, the Court suggests that the MUW is so operated as to “perpetuate the stereotyped view of nursing as an exclusively women’s job.” But as the Court itself acknowledges…, [the] School of Nursing makes up only one part—a relatively small part—of MUW’s diverse modern university campus and curriculum. The other departments on the MUW campus offer a typical range of degrees and a typical range of subjects. There is no indication that women suffer fewer opportunities at other Mississippi state campuses because of MUW’s admission policy.

In sum, the practice of voluntarily chosen single-sex education is an honored tradition in our country, even if it now rarely exists in state colleges and universities. Mississippi’s accommodation of such student choices is legitimate because it is completely consensual, and is important because it permits students to decide for themselves the type of college education they think will benefit them most.

NOTES AND QUESTIONS

1. What is the test to evaluate gender classifications announced in Hogan? What considerations does the Court emphasize must be used in application of this test?

2. What is the state’s stated purpose for limiting this nursing program to women? What is the Court’s appraisal of the state’s purpose? Without question, the program expands nursing opportunities for women. Is the Court’s rejection of the state’s purpose dependent on its factual assertion that the school stereotypes women as suited primarily for nursing? Do you agree?

3. What relevance, if any, should the personal preferences of women or men to attend single-sex schools have on the constitutionality of those schools? Does it matter whether their preferences are influenced by personal and/or social biases?

4. To what extent is discrimination against men in education an actual problem requiring redress? Should it matter who is being disadvantaged on the basis of sex? Do you find it curious that the Court chose this case to address the constitutional issues relating to single-sex education?

373

During the 1990s and early 2000s, there was a growing concern over how schools “shortchange boys.” See, e.g., William Pollack, Real Boys: Protecting Our Sons from the Myths of Boyhood (1998); Christina Hoff Sommers, The War Against Boys (2000). As one researcher has noted:

In fact, American boys are scoring higher and achieving more than they ever have before. But girls have just improved their performance on some measures even faster. As a result, girls have narrowed or even closed some academic gaps that previously favored boys, while other long-standing gaps that favored girls have widened, leading to the belief that boys are falling behind. There’s no doubt that some boys—particularly Hispanic and black boys and boys from low-income homes—are in real trouble. But the predominant issues for them are race and class, not gender. Closing racial and economic gaps would help poor and minority boys more than closing gender gaps, and focusing on gender gaps may distract attention from the bigger problems facing these youngsters.

Sara Mead, The Truth About Boys and Girls, in The Evidence Suggests Otherwise 3 (2006). Under what, if any, circumstances might the state be justified in attempting to remedy boys’ lower academic achievement? What means and programs would be appropriate? In a competitive admissions context, would it be permissible to give males a “plus-factor” similar to the use of race as a plus-factor to ensure more equitable gender enrollment?

The Court in Hogan intimated that a single-sex education program with an “exceedingly persuasive” objective of remedying past inequality could be constitutionally permissible if the gender-based classification is substantially and directly related to a compensatory objective, but stressed that (1) the nursing program at question had no compensatory objective since women were already overrepresented in nursing programs, (2) the exclusion of men was not substantially and directly related to the alleged objective, and (3) the program would not be materially changed if men were admitted. In this next case, the Supreme Court takes up the questions of what sorts of justifications are “exceedingly persuasive,” whether single-sex education is unconstitutional if the allowing admission of the excluded gender materially changes the educational program, and what sort of exclusions would be considered substantially and directly related to an asserted justification.

United States v. Virginia (VMI)

518 U.S. 515 (1996)

Justice Ginsburg delivered the opinion of the Court.

Virginia’s public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.

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Founded in 1839, VMI is today the sole single-sex school among Virginia’s 15 public institutions of higher learning. VMI’s distinctive mission is to produce “citizen-soldiers,” men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an “adversative method” modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school’s graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment.

VMI has notably succeeded in its mission to produce leaders; among its alumni are military generals, Members of Congress, and business executives. The school’s alumni overwhelmingly perceive that their VMI training helped them to realize their personal goals. VMI’s endowment reflects the loyalty of its graduates; VMI has the largest per-student endowment of all undergraduate institutions in the Nation.

Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women. And the school’s impressive record in producing leaders has made admission desirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords.

[VMI’s historical mission is “‘to produce educated and honorable men, prepared for the varied work of civil life, imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready as citizen-soldiers to defend their country in time of national peril.’”]

VMI produces its “citizen-soldiers” through “an adversative, or doubting, model of education” which features “[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values.” As one Commandant of Cadets described it, the adversative method “‘dissects the young student,’” and makes him aware of his “‘limits and capabilities,’” so that he knows “‘how far he can go with his anger,…how much he can take under stress,…exactly what he can do when he is physically exhausted.’”

VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills. Entering students are incessantly exposed to the rat line, “an extreme form of the adversative model,” comparable in intensity to Marine Corps boot camp. Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the 7-month experience, to their former tormentors.

VMI attracts some applicants because of its reputation as an extraordinarily challenging military school, and “because its alumni are exceptionally close to375 the school.” “[W]omen have no opportunity anywhere to gain the benefits of [the system of education at VMI].”

In 1990, the United States sued the Commonwealth of Virginia and VMI, alleging that VMI’s exclusively male admission policy violated the Equal Protection Clause. In the two years preceding the lawsuit, VMI had received inquiries from 347 women, but had responded to none of them. “[S]ome women, at least,” the [district] court said, “would want to attend the school if they had the opportunity.” The court further recognized that, with recruitment, VMI could “achieve at least 10% female enrollment”—“a sufficient ‘critical mass’ to provide the female cadets with a positive educational experience.” And it was also established that “some women are capable of all of the individual activities required of VMI cadets.” In addition, experts agreed that if VMI admitted women, “the VMI ROTC experience would become a better training program from the perspective of the armed forces, because it would provide training in dealing with a mixed-gender army.”

The District Court ruled in favor of VMI, however, and rejected the equal protection challenge. [The] District Court reasoned that education in “a single-gender environment, be it male or female,” yields substantial benefits. [The court acknowledged that women are excluded from those benefits, but “‘some aspects of the [school’s] distinctive method would be altered’ if women were admitted.” The Fourth Circuit, however, held that the state must provide women a remedy, but could do so by admitting women to VMI, establishing a parallel institution or program for women, or converting the school to a private institution.]

In response to the Fourth Circuit’s ruling, Virginia proposed a parallel program for women: Virginia Women’s Institute for Leadership (VWIL). The 4-year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI’s mission—to produce “citizen-soldiers”—the VWIL program would differ from VMI in academic offerings, methods of education, and financial resources.

The average combined SAT score of entrants at Mary Baldwin is about 100 points lower than the score for VMI freshmen. Mary Baldwin’s faculty holds “significantly fewer Ph.D.’s than the faculty at VMI,” and receives significantly lower salaries. While VMI offers degrees in liberal arts, the sciences, and engineering, Mary Baldwin, at the time of trial, offered only bachelor of arts degrees. A VWIL student seeking to earn an engineering degree could gain one, without public support, by attending Washington University in St. Louis, Missouri, for two years, paying the required private tuition.

[A “Task Force” designed the VWIL program.] Training its attention on methods of instruction appropriate for “most women,” the Task Force determined that a military model would be “wholly inappropriate” for VWIL.

VWIL students would participate in ROTC programs and a newly established, “largely ceremonial” Virginia Corps of Cadets, but the VWIL House would not have a military format and VWIL would not require its students to eat meals together or to wear uniforms during the school day. In lieu of VMI’s adversative method, the VWIL Task Force favored “a cooperative method which376 reinforces self-esteem.” In addition to the standard bachelor of arts program offered at Mary Baldwin, VWIL students would take courses in leadership, complete an off-campus leadership externship, participate in community service projects, and assist in arranging a speaker series.

Virginia returned to the District Court seeking approval of its proposed remedial plan, and the court decided the plan met the requirements of the Equal Protection Clause. [While “some women…may prefer the VMI methodology to the VWIL methodology,” the constitution does “not require the Commonwealth to provide a mirror image VMI for women.” A divided Court of Appeals affirmed the District Court.]

Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action. Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, “our Nation has had a long and unfortunate history of sex discrimination.” Through a century plus three decades and more of that history, women did not count among voters composing “We the People”; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “basis in reason” could be conceived for the discrimination.

In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men).

To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.

The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer377 accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring: “[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.”

“Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” to “promot[e] equal employment opportunity,” and to advance full development of the talent and capacities of our Nation’s people.¹ But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.

Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no “exceedingly persuasive justification” for excluding all women from VMI. We therefore affirm the Fourth Circuit’s initial judgment, which held that Virginia had violated the Equal Protection Clause. Because the remedy proffered by Virginia—the Mary Baldwin VWIL program—does not cure the constitutional violation, i.e., it does not provide equal opportunity, we reverse the Fourth Circuit’s final judgment in this case.

[Virginia asserts two justifications in defense of VMI’s exclusion of women.] First, the Commonwealth contends, “single-sex education provides important educational benefits,” and the option of single-sex education contributes to “diversity in educational approaches.” Second, the Commonwealth argues, “the unique VMI method of character development and leadership training,” the school’s adversative approach, would have to be modified were VMI to admit women. We consider these two justifications in turn.

Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation. Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the State. In cases of this genre, our precedent instructs that “benign” justifications proffered in defense of categorical378 exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded. Mississippi Univ. for Women v. Hogan is immediately [on] point. There the State asserted, in justification of its exclusion of men from a nursing school, that it was engaging in “educational affirmative action” by “compensat[ing] for discrimination against women.” Undertaking a “searching analysis,” the Court found no close resemblance between “the alleged objective” and “the actual purpose underlying the discriminatory classification.” Pursuing a similar inquiry here, we reach the same conclusion.

Neither recent nor distant history bears out Virginia’s alleged pursuit of diversity through single-sex educational options. In 1839, when the State established VMI, a range of educational opportunities for men and women was scarcely contemplated. Higher education at the time was considered dangerous for women. VMI [admitted only men and] followed the lead of the State’s flagship school, the University of Virginia, founded in 1819.

In 1879, the State Senate resolved to look into the possibility of higher education for women, recognizing that Virginia “‘has never, at any period of her history,’” provided for the higher education of her daughters. Despite this recognition, no new opportunities were instantly open to women.

Virginia eventually [provided for women’s colleges in the late 1800s and early 1900s, but those were converted to coeducational schools by the mid-1970s. Not until 1972 did the University of Virginia agree to begin admitting “women on an equal basis with men.” The state now] describes the current absence of public single-sex higher education for women as “an historical anomaly.” But the historical record indicates action more deliberate than anomalous.

[W]e find no persuasive evidence in this record that VMI’s male-only admission policy “is in furtherance of a state policy of ‘diversity.’” No such policy can be discerned from the movement of all other public colleges and universities in Virginia away from single-sex education. [We also question] “how one institution with autonomy, but with no authority over any other state institution, can give effect to a state policy of diversity among institutions.” A purpose genuinely to advance an array of educational options is not served by VMI’s historic and constant plan—a plan to “affor[d] a unique educational benefit only to males.” However “liberally” this plan serves the State’s sons, it makes no provision whatever for her daughters. That is not equal protection.

Virginia next argues that VMI’s adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessarily be “radical,” so “drastic,” Virginia asserts, as to transform, indeed “destroy,” VMI’s program. Neither sex would be favored by the transformation, Virginia maintains: Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would “eliminat[e] the very aspects of [the] program that distinguish [VMI] from…other institutions of higher education in Virginia.”

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The [lower courts found] that coeducation would materially affect “at least these three aspects of VMI’s program—physical training, the absence of privacy, and the adversative approach.” And it is uncontested that women’s admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets. It is also undisputed, however, that “the VMI methodology could be used to educate women.” The District Court even allowed that some women may prefer it to the methodology a women’s college might pursue. “[S]ome women, at least, would want to attend [VMI] if they had the opportunity,” the District Court recognized, and “some women,” the expert testimony established, “are capable of all of the individual activities required of VMI cadets.” The parties, furthermore, agree that “some women can meet the physical standards [VMI] now impose[s] on men.” In sum, as the Court of Appeals stated, “neither the goal of producing citizen soldiers,” VMI’s raison d’être, “nor VMI’s implementing methodology is inherently unsuitable to women.”

In support of its initial judgment for Virginia, the District Court made “findings” on “gender-based developmental differences.” These “findings” restate the opinions of Virginia’s expert witnesses, opinions about typically male or typically female “tendencies.” For example, “[m]ales tend to need an atmosphere of adversativeness,” while “[f]emales tend to thrive in a cooperative atmosphere.” “I’m not saying that some women don’t do well under [the] adversative model,” VMI’s expert on educational institutions testified, “undoubtedly there are some [women] who do”; but educational experiences must be designed “around the rule,” this expert maintained, and not “around the exception.”

The United States does not challenge any expert witness estimation on average capacities or preferences of men and women. Instead, the United States emphasizes that time and again since this Court’s turning point decision in Reed v. Reed, 404 U.S. 71 (1971), we have cautioned reviewing courts to take a “hard look” at generalizations or “tendencies” of the kind pressed by Virginia. State actors controlling gates to opportunity may not exclude qualified individuals based on “fixed notions concerning the roles and abilities of males and females.” Mississippi Univ. for Women, 458 U.S. at 725.

It may be assumed, for purposes of this decision, that most women would not choose VMI’s adversative method. [But] it is also probable that “many men would not want to be educated in such an environment.” Education, to be sure, is not a “one size fits all” business. The issue, however, is not whether “women—or men—should be forced to attend VMI”; rather, the question is whether the State can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.

The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophec[ies]” once routinely used to deny rights or opportunities. When women first sought admission to the bar and access to legal education, concerns of the same order were expressed.

[Likewise, when women entered the medical field and police departments, many expressed concerns about women’s ability to perform the job, the380 devaluation of the professions, the possibility of undermining male solidarity, depriving males of opportunity, and sexual misconduct.]

Women’s successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded. The State’s justification for excluding all women from “citizen-soldier” training for which some are qualified, in any event, cannot rank as “exceedingly persuasive,” as we have explained and applied that standard.

Virginia and VMI trained their argument on “means” rather than “end,” and thus misperceived our precedent. Single-sex education at VMI serves an “important governmental objective,” they maintained, and exclusion of women is not only “substantially related,” it is essential to that objective. By this notably circular argument, the “straightforward” test Mississippi Univ. for Women described was bent and bowed.

The State’s misunderstanding is apparent from VMI’s mission: to produce “citizen-soldiers,” individuals “imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready…to defend their country in time of national peril.” Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the State’s great goal is not substantially advanced by women’s categorical exclusion, in total disregard of their individual merit, from the State’s premier “citizen-soldier” corps. Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification’” that must be the solid base for any gender-defined classification.

A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons in “the position they would have occupied in the absence of [discrimination].” The constitutional violation in this case is the categorical exclusion of women from an extraordinary educational opportunity afforded men. Virginia chose not to eliminate VMI’s exclusionary policy. For women only, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities. Having violated the Constitution’s equal protection requirement, Virginia was obliged to show that its remedial proposal “directly address[ed] and relate[d] to” the violation, the equal protection denied to women ready, willing, and able to benefit from educational opportunities of the kind VMI offers. Virginia described VWIL as a “parallel program,” and asserted that VWIL shares VMI’s mission of producing “citizen-soldiers” and VMI’s goals of providing “education, military training, mental and physical discipline, character…and leadership development.”

[This proposed remedy fails because] VWIL affords women no opportunity to experience the rigorous military training for which VMI is famed. Instead, the381 VWIL program “deemphasize[s]” military education and uses a “cooperative method” of education “which reinforces self-esteem.” Virginia maintains that these methodological differences are “justified pedagogically,” based on “important differences between men and women in learning and developmental needs,” “psychological and sociological differences” Virginia describes as “real” and “not stereotypes.” The Task Force charged with developing the leadership program for women “determined that a military model and, especially VMI’s adversative method, would be wholly inappropriate for educating and training most women.” The Commonwealth embraced the Task Force view, as did expert witnesses who testified for Virginia.

As earlier stated, generalizations about “the way women are,” estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. Notably, Virginia never asserted that VMI’s method of education suits most men. It is also revealing that Virginia accounted for its failure to make the VWIL experience “the entirely militaristic experience of VMI” on the ground that VWIL “is planned for women who do not necessarily expect to pursue military careers.” By that reasoning, VMI’s “entirely militaristic” program would be inappropriate for men in general or as a group, for “[o]nly about 15% of VMI cadets enter career military service.”

In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realties: VMI’s “implementing methodology” is not “inherently unsuitable to women”; “some women…do well under [the] adversative model”; “some women, at least, would want to attend [VMI] if they had the opportunity”; “some women are capable of all of the individual activities required of VMI cadets,” and “can meet the physical standards [VMI] now impose[s] on men.” It is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted, a remedy that will end their exclusion from a state-supplied educational opportunity for which they are fit, a decree that will “bar like discrimination in the future.”

In myriad respects other than military training, VWIL does not qualify as VMI’s equal. VWIL’s student body, faculty, course offerings, and facilities hardly match VMI’s. Nor can the VWIL graduate anticipate the benefits associated with VMI’s 157-year history, the school’s prestige, and its influential alumni network. Virginia, while maintaining VMI for men only, has failed to provide any “comparable single-gender women’s institution.” Instead, the Commonwealth has created a VWIL program fairly appraised as a “pale shadow” of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence.

Virginia’s VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response to a state trial court’s 1946 ruling that African Americans could not be denied a legal education at a state facility. See Sweatt v. Painter, 339 U.S. 629 (1950). Reluctant to admit African Americans to its flagship University of Texas Law School, the State set up a separate school for black law students. As382 originally opened, the new school had no independent faculty or library, and it lacked accreditation. [The Supreme Court overlooked these tangible inequalities between the University of Texas Law School and its African American counterpart, but the Court also emphasized that the schools were unequal in terms of] “those qualities which are incapable of objective measurement but which make for greatness” in a school, including “reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige.” Accordingly, the Court held, the Equal Protection Clause required Texas to admit African Americans to the University of Texas Law School. In line with Sweatt, we rule here that Virginia has not shown substantial equality in the separate educational opportunities the State supports at VWIL and VMI.

VII

VMI offers an educational opportunity no other Virginia institution provides, and the school’s “prestige”—associated with its success in developing “citizen-soldiers”—is unequaled. Virginia has closed this facility to its daughters and, instead, has devised for them a “parallel program,” with a faculty less impressively credentialed and less well paid, more limited course offerings, fewer opportunities for military training and for scientific specialization. VMI, beyond question, “possesses to a far greater degree” than the VWIL program “those qualities which are incapable of objective measurement but which make for greatness in a…school,” including “position and influence of the alumni, standing in the community, traditions and prestige.” Women seeking and fit for a VMI-quality education cannot be offered anything less, under the State’s obligation to afford them genuinely equal protection.

A prime part of the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of “We the People” expanded. There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the “more perfect Union.”

Justice Scalia, dissenting.

[I]t is my view that “when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.” The same applies, to a practice asserted to be in violation of the post–Civil War Fourteenth Amendment.

The all-male constitution of VMI comes squarely within such a governing tradition. For almost all of VMI’s more than a century and a half of existence, its single-sex status reflected the uniform practice for government-supported military colleges. [Federal military colleges’] admission of women in 1976 (upon which the Court today relies) came not by court decree, but because the people, through their elected representatives, decreed a change. In other words, the tradition of having government-funded military schools for men is as383 well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.

“[It is] [c]oeducation, historically, [that] is a novel educational theory. From grade school through high school, college, and graduate and professional training, much of the Nation’s population during much of our history has been educated in sexually segregated classrooms.” These traditions may of course be changed by the democratic decisions of the people, as they largely have been[, but it is inappropriate for this Court to force that change].

To reject the Court’s disposition today, however, it is not necessary to accept my view that the Court’s made-up tests cannot displace longstanding national traditions as the primary determinant of what the Constitution means. It is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades [: intermediate scrutiny].

Although the Court in two places recites the test as stated in Hogan, which asks whether the State has demonstrated “that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives,” the Court prefers the phrase “exceedingly persuasive justification” from Hogan. The Court’s nine invocations of that phrase would be unobjectionable if the Court acknowledged that whether a “justification” is “exceedingly persuasive” must be assessed by asking “[whether] the classification serves important governmental objectives and [whether] the discriminatory means employed are substantially related to the achievement of those objectives.” Instead, however, the Court proceeds to interpret “exceedingly persuasive justification” in a fashion that contradicts the reasoning of Hogan and our other precedents.

That is essential to the Court’s result, which can only be achieved by establishing that intermediate scrutiny is not survived if there are some women interested in attending VMI, capable of undertaking its activities, and able to meet its physical demands. Only the amorphous “exceedingly persuasive justification” phrase, and not the standard elaboration of intermediate scrutiny, can be made to yield this conclusion that VMI’s single-sex composition is unconstitutional because there exist several women willing and able to undertake VMI’s program. Intermediate scrutiny has never required a least-restrictive-means analysis, but only a “substantial relation” between the classification and the state interests that it serves. There is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance.

III

It is beyond question that Virginia has an important state interest in providing effective college education for its citizens. [A]s the Court of Appeals384 here stated: “That single-gender education at the college level is beneficial to both sexes is a fact established in this case.”

[First,] Virginia demonstrated at trial that “[a] substantial body of contemporary scholarship and research supports the proposition that, although males and females have significant areas of developmental overlap, they also have differing developmental needs that are deep-seated.” [T]he District Court stated as follows: “One empirical study in evidence, not questioned by any expert, demonstrates that…[s]tudents of both sexes become more academically involved, interact with faculty frequently, show larger increases in intellectual self-esteem and are more satisfied with practically all aspects of college experience (the sole exception is social life) compared with their counterparts in coeducational institutions.…”

[Second,] VMI employs a “distinctive educational method,” sometimes referred to as the “adversative, or doubting, model of education.” No one contends that this method is appropriate for all individuals; education is not a “one size fits all” business. Just as a State may wish to support junior colleges, vocational institutes, or a law school that emphasizes case practice instead of classroom study, so too a State’s decision to maintain within its system one school that provides the adversative method is “substantially related” to its goal of good education. Moreover, it was uncontested that “if the state were to establish a women’s VMI-type [i.e., adversative] program, the program would attract an insufficient number of participants to make the program work”; and it was found by the District Court that if Virginia were to include women in VMI, the school “would eventually find it necessary to drop the adversative system altogether.” Thus, Virginia’s options were an adversative method that excludes women or no adversative method at all.

The Court argues that VMI would not have to change very much if it were to admit women. The principal response to that argument is that it is irrelevant: If VMI’s single-sex status is substantially related to the government’s important educational objectives, that concludes the inquiry. There should be no debate in the federal judiciary over “how much” VMI would be required to change if it admitted women and whether that would constitute “too much” change.

But if such a debate were relevant, the Court would certainly be on the losing side. The District Court found as follows: “[T]he evidence establishes that key elements of the adversative VMI educational system, with its focus on barracks life, would be fundamentally altered, and the distinctive ends of the system would be thwarted, if VMI were forced to admit females and to make changes necessary to accommodate their needs and interests.” Changes that the District Court’s detailed analysis found would be required include new allowances for personal privacy in the barracks, such as locked doors and coverings on windows, which would detract from VMI’s approach of regulating minute details of student behavior, “contradict the principle that everyone is constantly subject to scrutiny by everyone else,” and impair VMI’s “total egalitarian approach” under which every student must be “treated alike”; changes in the physical training program, which would reduce “[t]he intensity and aggressiveness of the current program”; and various modifications in other respects of the adversative training program that permeates student life.

385

[The] District Court specifically concluded that while “[w]ithout a doubt” VMI could assimilate women, “it is equally without a doubt that VMI’s present methods of training and education would have to be changed” by a “move away from its adversative new cadet system.” VMI “would eventually find it necessary to drop the adversative system altogether.”

NOTES AND QUESTIONS

1. In other cases, intermediate scrutiny is described as requiring an “important” governmental objective. In VMI, Justice Ginsburg’s majority opinion used the term “exceedingly persuasive justification.” Does this language elevate the standard or just restate and refocus it?

2. Justice Scalia emphasized that the Court has previously rejected strict scrutiny for gender classifications and charges that the majority’s application of intermediate scrutiny in VMI was more akin to strict scrutiny. He applies a less skeptical version of intermediate scrutiny and finds that VMI’s program passes it. To the extent he is correct, does his opinion ironically demonstrate that strict scrutiny might be the appropriate standard for gender classifications? Would Scalia’s version of intermediate scrutiny uphold some programs, even though they are partially based on gender stereotypes or perpetuate inequality?

3. What are the state’s justifications for operating a single-sex program at VMI? Why does the Court reject them?

4. What, if any, interests might suffice as exceedingly persuasive to justify differential treatment based on gender?

5. How does the Court address or respond to the existence of differences between women and men and their relevance?

6. How important is the “adversative model of education” to the operation of VMI? If it were true that admitting women to VMI would require significant changes and would diminish the educational opportunities available to men, is that a basis for excluding women? To the extent such harm to men would occur, is it a product of gender biases that instructors and male students themselves harbor? If so, insulating a single-sex institution from reform would amount to permitting private gender bias to drive public policy.

7. Even if admitting women would change VMI’s method, the practical result of excluding women is to deny women a unique experience that no other school in the state will be able to offer. Under any conception of the Constitution other than a historical one, can one constitutionally justify denying women educational opportunities that men have solely based on sex? Yet, if one assumed that the adversative model would not operate effectively in a coeducational environment at VMI, both men and women might lose the opportunity. Is that the price of equality that we must bear until we move to a society where gender is less relevant?

8. In a number of footnotes excluded here, the majority focuses on the claim that admitting women to VMI will require drastic changes to VMI’s educational environment. The majority emphasizes that similar arguments have been used in the past as a basis for impeding the full citizenship and inclusion386 of women. The Court also analogizes to the experience of racial desegregation in the military and in schools, noting that:

The pluralistic argument for preserving all-male colleges is uncomfortably similar to the pluralistic argument for preserving all-white colleges.…The all-male college would be relatively easy to defend if it emerged from a world in which women were established as fully equal to men. But it does not. It is therefore likely to be a witting or unwitting device for preserving tacit assumptions of male superiority—assumptions for which women must eventually pay.

518 U.S. at 535 n.8. Justice Scalia treats the exclusion of women as purely a factual question of educational benefits and environment. The majority appears to treat it as more of a legal and threatened principle question, focusing on the facial inequality in treatment. Which is it? Should the factual assertions of harms and educational upheaval have any more bearing here than they did in Brown v. Board of Education?

9. Does the Court set up an impossible situation for the state by demanding an exact analogue to VMI when there is insufficient female interest in such an institution to operate it?

10. The Commonwealth of Virginia argued that “diversity” of choice in programs was an important governmental interest furthered by the exclusion of women from VMI and the exclusion of men from VWIL. The Supreme Court rejected this argument as circular and designed to evade equal protection scrutiny all together. As a subsequent federal notice explained, “[s]ome commenters stated that there is not an important governmental interest in a sex-based educational option as a diverse option without a requirement that the recipient demonstrate that the single-sex option advances educational goals, because otherwise the single-sex nature of the class would always be justified as substantially related to achievement of the objective, which is circular.” Nondiscrimination on the Basis of Sex in Education, 71 Fed. Reg. 62,530-01, at 62,534 (Oct. 25, 2006).

11. Justice Scalia argues that the majority’s standards are too onerous and the costs of litigating them too high. Thus, single-sex education is “functionally dead.” Is Justice Scalia correct? Another reading of the case would be that the Court’s opinion casts doubt only on elite single-sex institutions that cannot be replicated, but leaves other single-sex institutions viable.

Commentators and data suggest that Justice Scalia (and Justice Rehnquist in an opinion omitted above) overstated the impending demise of single-sex education. See, e.g., Kimberly J. Jenkins, Constitutional Lessons for the Next Generation of Public Single-Sex Elementary and Secondary Schools, 47 Wm. & Mary L. Rev. 1953 (2006) (detailing the expansion of single-sex education after VMI); Sara L. Mandelbaum, “As VMI Goes…”: The Domino Effect and Other Stubborn Myths, 6 Seton Hall Const. L.J. 979, 979-982 (1996).

In 2001, Congress passed the No Child Left Behind Act (NCLB), which included a provision to fund “innovative assistance programs,” including programs that387 would “provide same-gender schools and classrooms.” See No Child Left Behind Act of 2001, Pub. L. No. 107-110, §5131, 115 Stat. 1425, 1781-1782 (2002) (codified as amended at 20 U.S.C. §7215(a) (2006)). In response to school district concerns about the legal basis for sex-segregated education, the Department of Education amended its Title IX regulations. Interestingly, it distinguished between segregated classrooms and schools. In regard to classrooms, the regulations indicate that single-sex classes (or extracurricular activities) must serve one of two “important” objectives: [t]o improve educational achievement of its students, through [an] overall established policy to provide diverse educational opportunities” or “[t]o meet the particular, identified educational needs of its students.” 34 C.F.R. §106.34(b)(1)(i)(A)-(B) (2012). The regulations further require that single-sex classes be (1) implemented in an “evenhanded manner,” (2) “completely voluntary,” and (3) provide a “a substantially equal coeducational class…in the same subject.” Id. §§106.34(b)(1)(ii), (iii), (iv).

As to single-sex schools, the regulations provide that “a recipient that operates a public nonvocational elementary or secondary school that excludes from admission any students, on the basis of sex, must provide students of the excluded sex a substantially equal single-sex school or coeducational school.” Id. §106.34(c)(1). The Department of Education will assess equality by examining “[t]he policies and criteria of admission, the educational benefits provided, including the quality, range, and content of curriculum and other services and the quality and availability of books, instructional materials, and technology, the quality and range of extracurricular offerings, the qualifications of faculty and staff, geographic accessibility, the quality, accessibility, and availability of facilities and resources, and intangible features, such as reputation of faculty.” Id. §106.34(c)(3). The regulations, however, specifically exempted charter schools, indicating that a “nonvocational public charter school…may be operated as a single-sex charter school without regard to the requirements” of the foregoing provisions. Id. §106.34(c)(2).

Do these regulations comport with the constitutional standards established in Hogan and VMI or do they suggest more flexibility than exists under the Constitution? The regulations do not attempt to define what would amount to an “important objective,” but do specifically include diversity and meeting students’ needs as important. With that said, the regulations’ carefully worded language in regard to diversity suggests a relatively narrow understanding of the interest. Diversity in educational opportunity is an important objective, not as a general principle, but only in so far as it improves educational achievement. The concept of and rationale for diversity in the context of single-sex education is also distinct from the rationale for racial diversity. As one scholar points out:

[E]mploying a diverse array of educational approaches within a single school system…is a quantitative change which does not necessarily result in the same qualitative educational improvement produced by interaction among students from diverse backgrounds. Greater choice is only beneficial to the extent that the additional pedagogical choices are themselves desirable. Therefore, the diversity which single-sex schools add to public education systems is good for students only if the schools themselves are educationally beneficial.

388 Denise C. Morgan, Anti-Subordination Analysis After United States v. Virginia: Evaluating the Constitutionality of K-12 Single-Sex Public Schools, 1999 U. Chi. Legal F. 381, 398-399 (1999).

In the context of the perceived “crisis” facing low-income males of color, some school districts, including districts in Miami, Milwaukee, Detroit, San Diego, and Baltimore, established single-sex schools and programs with a specific focus on educating black males using an afrocentric curriculum. The elementary school in Miami saw the attendance rates for African American males rise by 6 percent, as well as improved achievement in some areas. The district, however, closed the school after its first year of operation in response to the U.S. Department of Education’s position that operating the school violated civil rights provisions. Civil rights groups, likewise, opposed these schools as denying girls equal opportunity and potentially setting precedent for the operation of all-white schools that teach white supremacy. Carol Innerst, ACLU, NOW Sue over Idea of Schools for Black Males Only, Wash. Times, Aug. 7, 1991, at A1; see also Garrett v. Board of Education of Detroit, 775 F. Supp. 1004 (E.D. Mich. 1991) (finding the single-sex school was unconstitutional because there was no showing that girls did not face many of the same challenges and would receive the same benefit as boys); Andrew McCreary, Public Single-Sex K-12 Education: The Renewal of Sex-Based Policy by Post-Race Politics, 40 J.L. & Educ. 461 (2011) (discussing the intersection of race and sex); Verna L. Williams, Reform or Retrenchment? Single-Sex Education and the Construction of Race and Gender, 2004 Wis. L. Rev. 5 (same).

Notwithstanding the setbacks experienced with these schools, single-sex schools and single-sex programs have been on the rise since the passage of NCLB and the adoption of these regulations. One single-sex education advocacy group notes that “[f]or the 2011-2012 school year, at least 506 public schools in the United States are offering single-sex educational opportunities. About 390 of those schools are coed schools which offer single-sex classrooms, but which retain at least some coed activities.” Nat’l Ass’n for Single Sex Pub. Educ., Single-Sex Schools/Schools with Single-Sex Classrooms/What’s the Difference?, http://www.singlesexschools.org/schools-schools.htm (last visited Feb. 28, 2013).

Kimberly J. Jenkins, Constitutional Lessons for the Next Generation of Public Single-Sex Elementary and Secondary Schools

47 Wm. & Mary L. Rev. 1953 (2006)

[“In light of the potential benefits of single-sex public schools, it is important that educators have clear guidance on their constitutional obligations.” But the Court’s precedent has alternated between very demanding and permissive versions of intermediate scrutiny. The former “could chill the development of single-sex schools” and the latter would “fail to identify the potential harms that could exist in a single-sex school.” The possibility of either can “discourage experimentation with single-sex schools.”

389

To address the indeterminacy of intermediate scrutiny and its potential for inappropriate outcomes, t]wo factors should serve as guideposts that direct how the substantial relationship component of intermediate scrutiny should be applied to single-sex public schools: whether attendance is voluntary and whether substantially equal opportunities are given to both sexes. These two characteristics can be used to divide single-sex public schools into two categories that present distinct potential risks and benefits, and thus warrant different constitutional requirements. If both voluntary attendance and substantially equal opportunities for both sexes are present, schools should be placed into the dual, voluntary category. If either voluntary attendance or substantially equal opportunities is absent, single-sex schools should be placed into the solitary or involuntary category. The substantial relationship test should be calibrated to be more demanding when assessing solitary or involuntary schools and less demanding when assessing dual, voluntary schools.

The first factor is whether the school district provides substantially equal opportunities to both sexes. If the district provides such opportunities, the absence of a denial of an opportunity or benefit to one sex should serve as a guidepost that distinguishes some single-sex schools from others. In identifying this as an important factor that should drive the constitutional analysis of single-sex schools, remembering that intermediate scrutiny is designed to review state action that grants an opportunity or benefit to only one sex, or that imposes a burden on only one sex, is important. The Court has explained that it is “[l]egislative classifications which distribute benefits and burdens on the basis of gender [that] carry the inherent risk of reinforcing stereotypes about the ‘proper place’ of women and their need for special protection.”

Although all single-sex schools classify students on the basis of sex, some single-sex schools do not involve the denial of an opportunity or benefit to one sex. Instead, each sex may receive the same or substantially equal benefits. This occurs in dual academies that provide a single-sex school for each sex with similar curricula, teaching methods, materials, and sometimes even the same teachers and facilities, as well as in some pairs of single-sex schools that educators design to provide both sexes similar educational opportunities. In these circumstances, the state has adopted a sex classification by separating boys and girls on the basis of sex, but it has not denied either sex a benefit or an opportunity. Such a separation should remain subject to intermediate scrutiny, but the absence of a denial of a benefit or opportunity to one sex warrants modification of the intermediate scrutiny standard because this subset of single-sex schools generally places less of a burden on either sex than when one sex is excluded from certain benefits. Substantially equal opportunities for each sex reduce the likelihood that either sex is harmed because disparate treatment is minimized. Thus, the provision of substantially equal opportunities helps to ensure that educators are not shortchanging the needs of either girls or boys, and such single-sex schools should be subject to a less demanding interpretation of the substantial relationship test.

The second factor is whether attendance at a single-sex school is voluntary. Voluntary schools are less likely to inflict harm on students of either sex for two reasons. First, students who do not attend the school can obtain substantially390 equal benefits in a coeducational school. Second, students who attend the school are not being forced to attend and could entirely avoid the sex classification. The choice to attend the school reduces the likelihood that the students are harmed by the school because any perceived harm to, or inferior opportunities for, students in single-sex schools will cause parents and students to select a different school. Voluntary attendance should help to assure educators and courts that those students who choose to attend the single-sex school, rather than a substantially equal coeducational school, believe that the school’s single-sex composition will help them achieve their educational goals. Therefore, voluntary attendance at a single-sex school accomplishes some of the work that intermediate scrutiny was created to achieve.

NOTES AND QUESTIONS

1. Do you agree that the Court has been inconsistent in its application of intermediate scrutiny? One scholar reasons that if single-sex education results in disadvantage for girls, “it is dubious” that the program could survive, regardless of “the precise ingredients of middle-tier scrutiny.” Gary J. Simson, Separate But Equal and Single-Sex Schools, 90 Cornell L. Rev. 443, 451 (2005). Regardless, Jenkins indicates that inconsistency in the test creates its own set of problems. What are those problems?

2. What factors does Jenkins find are most important in assessing the legality of single-sex education? Does Jenkins’ approach offer more clarity than the Court? Would it better accomplish the goals of intermediate scrutiny?

3. Gary Simson summarizes the research on single-sex education this way:

The evidence that public single-sex education in this country produces, and can be expected to produce, substantial benefits for girls and boys not available in a coed environment appears to be inconclusive at best. Because there have been so few single-sex public schools in the United States in recent years, studies have largely focused on single-sex Catholic schools, other private schools, and colleges in this country or single-sex public schools in other countries where they are more prevalent. Drawing inferences for the U.S. public school context from data collected about non-public or non-U.S. schools or about colleges rather obviously lends itself to disagreement because of the need to control for significant variables and the difficulty of doing so. In general, however, while older studies tend to suggest substantial benefits to public single-sex education, recent studies have cast serious doubt on both the methodology of the older ones and the existence of any such benefits. Perhaps most fundamentally, to the extent that single-sex schools do seem to yield advantageous results, there typically appears to be good reason to believe that the advantages derive not from the single-sex nature of the school but rather from other distinctive features of the school such as small class size, favorable faculty-student ratio, or special mentoring programs—features that could be replicated in coed schools. Coed schools therefore appear to offer a means of producing these results that avoids the disadvantaging effects of a sex classification, and the justification for using single-sex schools is substantially diminished as a result.

Simson, supra at 452-453. If the evidence is as weak as Simson and some others suggest, why do a significant number of researchers and parents continue to391 support single-sex education? Diane Halpern argues that many continue to support single-sex education not because the data supports it, but because, as psychologists have shown, “people process information differently when it supports or fails to support what they believe to be true. The tendency to seek information that confirms what we believe to be true is called confirmation bias. Of course, most people believe that they fairly assess all of the available information, but even research with NASA scientists has shown that they prefer information that supports their beliefs.” Report of Diane Halpern for Plaintiffs, Doe v. Vermillion Parish, Civil Action No. 6:09-cv-01565, at 16, Nov. 11, 2009, available at http://www.aclu.org/files/assets/Expert_Report_-_Diane_Halpern.pdf. Thus, she argues that supporters of single-sex education latch onto unreliable studies and anecdotes. On a more global level, she is suggesting that prevalent gender bias and norms make many predisposed to find value in single-sex education that does not exist.

4. Should courts and educators proceed with an open mind toward single-sex programs, as Professor Jenkins suggests, or be inherently skeptical, as Halpern and Simson suggest, of any findings that these programs are beneficial? To the extent studies vary, a crucial issue is which party bears the burden for demonstrating the efficacy, or lack thereof, of single-sex education. With racial segregation, courts became extremely skeptical after Brown and placed the burden of proof on the school district. Should heightened skepticism similarly apply to single-sex education?

PROBLEM

Clarendon High School recently established a parenting education program that is exclusively available to male students. Cathy is a female sophomore who wants to enroll in the parenting education program. Learning about the exclusion of females, Cathy met with the principal, who told her that “girls do not need such programs because they already possess maternal instinct.” Cathy subsequently filed suit in federal court to challenge the exclusion on equal protection grounds. In its responsive pleading, the school asserted that it is an important governmental objective to ensure that male students are prepared for the rigors of parenthood, and the exclusion of females allows the program to focus entirely on fatherhood concerns. The school also argued that males are less capable of developing parenting skills in coeducational environments since male students subconsciously feel inferior to female students in regards to parenting and, thus, are deterred from classroom participation. The school cites the fact that similar programs have existed for decades and references research studies indicating that these programs are more successful than coeducational parenting courses.

How should Cathy respond to the university’s claims? How would the VMI majority approach the case, and how would the Court rule?

392

E. AFFIRMATIVE ACTION BASED ON GENDER

Like race-based affirmative action policies, gender preferences in admissions have been subject to intense debate. Women were historically underrepresented in higher education, but as a result of Title IX, reduced stereotypes, and various other legal and policy changes, women now make up a majority of college students. “Since 1970, women’s undergraduate enrollment has increased more than twice as fast as men’s and surpassed men’s enrollment in 1978.” U.S. Dep’t of Educ., The Condition of Education 2006, at 36 (2006). As of 2010, females comprised 57 percent and males 43 percent of the full-time students enrolled in undergraduate institutions. U.S. Dep’t of Educ., The Condition of Education 2012, at 34 (2012). Yet, women are still underrepresented in critical programs such as engineering, math, and science. Am. Ass’n of Univ. Women, Why So Few? Women in Science, Technology, Engineering, and Mathematics xiv (2010) (women earn only 20 percent of science, engineering, and math bachelor’s degrees and are even more underrepresented in graduate programs). College and university administrators have endeavored to determine what, if anything, they can do to address these gender disparities, with some programs and policies adopting preferences for women and others adopting preferences for men.

Affirmative action is commonly understood as an attempt to compensate a historically disadvantaged group for past inequities or help the group overcome current ones. Since women were historically excluded in most areas of education, Title IX itself is a form of affirmative action. The statute’s implementing regulations state that “in the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirmative action to overcome the effects of the conditions which resulted in limited participation therein by persons of a particular sex,” 34 C.F.R. §106.3(b) (2012), but the regulations shall not “be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area.” 20 U.S.C. §1681(b) (2006).

While the Supreme Court has addressed race-conscious admission policies, it has not addressed gender-conscious affirmative action and whether such policies would survive constitutional scrutiny. As discussed in the second chapter, the Supreme Court’s race cases have held that diversity is a compelling interest and affirmative action policies considering race are sufficiently narrowly tailored, so long as the policy does not use racial quotas, considers individualized and demographic factors in addition to race, the policymakers give serious good faith consideration to race-neutral alternatives, no member of the nonprotected class is unduly harmed, and the policy has some end point. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007); Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003). Those cases, while393 analogous in some respects, tell us little about the legality of gender-conscious admissions.

One scholar reasons that “[t]he failure of the admissions programs in Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) and Reed v. Reed, 404 U.S. 71 (1971), to hold up under intermediate scrutiny demonstrates the substantial hurdle that states will face if forced to defend a gender-based affirmative action program.” See Amy Hinkley, Comment, Scrutinize This! The Questionable Constitutionality of Gender-Conscious Admissions Policies Utilized by Public Universities, 37 Pepp. L. Rev. 339, 356 (2010). But “[t]he application of intermediate scrutiny to gender-based affirmative action programs means that race-based affirmative action is subject to a higher level of constitutional scrutiny. Thus, it is more likely that a race-based remedial program will be invalidated than an affirmative action program based on gender, even though racial minorities are meant to receive a higher level of protection from discrimination than women.” Jason M. Skaggs, Comment, Justifying Gender-Based Affirmative Action Under United States v. Virginia’s “Exceedingly Persuasive Justification” Standard, 86 Cal. L. Rev. 1169, 1175 (1998). The difference in standards, however, may be of more symbolic than practical importance. In Hogan and VMI, the Court demanded an “exceedingly persuasive justification” for the gender classification and “persuasive evidence” that the classification is “sufficiently related” to the achievement of that interest. Id. at 1208-1209.

Seeking to resolve this potential anomaly, lower courts and scholars have debated whether gender-based affirmative action is governed by the race standards articulated in Grutter and Parents Involved rather than the lower standard articulated in Title IX regulation 34 C.F.R. §106.3(b). See, e.g., Jeldness v. Pearce, 30 F.3d 1220 (9th Cir. 1994) (holding that Title IX incorporated the intermediate scrutiny standard); Weser v. Glen, 190 F. Supp. 2d 384, 395 (E.D.N.Y. 2002); Johnson v. Bd. of Regents of the Univ. Sys. of Ga., 106 F. Supp. 2d 1362, 1367 (S.D. Ga. 2000) (applying strict scrutiny to gender-based affirmative action); Coal. for Econ. Equity v. Wilson, 946 F. Supp. 1480, 1519 n.51 (N.D. Cal. 1996), rev’d on other grounds, 122 F.3d 692 (9th Cir. 1997) (indicating “Congress could not have intended to import the Fourteenth Amendment standards for gender into Title IX.”); David S. Cohen, Title IX: Beyond Equal Protection, 28 Harv. J.L. & Gender 217 (2005) (arguing that Title IX provides broader protections than the Equal Protection Clause); William E. Thro, Judicial Paradigms of Educational Equality, 174 Educ. L. Rep. 1, 17 & n.56 (2003) (stating that “Title IX prohibits gender discrimination to the same extent and under the same standards as the Equal Protection Clause”). Similarly, there is a split among the federal circuit courts over whether to use intermediate or strict scrutiny in evaluating gender-based affirmative action in noneducation contexts. See, e.g., W. States Paving Co. v. Wash. Dep’t of Transp., 407 F.3d 983, 990 n.6 (9th Cir. 2005) (intermediate scrutiny but requiring “exceedingly persuasive justification”); Berkley v. United States, 287 F.3d 1076, 1085 (Fed. Cir. 2002) (ruling that preferential treatment policies must be subjected to strict scrutiny); Dallas Fire Fighters Ass’n v. City of Dallas, 150 F.3d 438, 441-442 (5th Cir. 1998), cert. denied, 526 U.S. 1038 (1999) (using intermediate scrutiny); Eng’g Contractors Ass’n of S. Fla., Inc. v. Metro. Dade Cnty., 122 F.3d 895, 907-909 (11th Cir.394 1997) (intermediate scrutiny but requiring “exceedingly persuasive justification”); Contractors Ass’n of E. Pa. v. City of Phila., 6 F.3d 990, 1001 (3d Cir. 1993) (using intermediate scrutiny); Mich. Rd. Bldrs.’ Ass’n, Inc. v. Milliken, 834 F.2d 583 (6th Cir. 1987), summarily aff’d, 489 U.S. 1061 (1989) (indicating intermediate scrutiny applies). In short, in the absence of Supreme Court precedent on point, the state of gender-based affirmative action programs benefiting women is unclear.

Unlike race-based affirmative action, where preferences are given to historically disadvantaged groups, some current affirmative action efforts in admissions give preference to male applicants, or attempt to increase their enrollment through gender-neutral methods. There are a number of methods whereby universities can increase male enrollment. One way is to set a threshold score for admission and, once that threshold is met, consider a variety of “soft factors,” some of which might favor men or neutralize gender, in making the final admissions decision. Because those with the very highest GPAs and standardized test scores are not automatically admitted, males have a better chance for admission. Another way “would be to assign extra points to a student just for being the desired sex” or “add up the initial point score and the points from the ‘soft factors’ and to simply admit more males than females from the highest scoring group.” Hinkley, supra, at 357.

Applicants, however, may be far less aware that gender, as opposed to race, plays a role in admissions. “‘Public universities, likely because of their obligations under Title IX and the Constitution, have been more circumspect about acknowledging any such preferences for males than have private undergraduate colleges (whose admissions policies are exempted from Title IX’s coverage).’ Indeed, there seems to be a general reluctance of colleges to admit a preference for males, as well as a ‘natural murkiness of the admissions process,’ which makes it difficult to determine how, or whether, gender is actually factored into admissions decisions.” Id. at 359.

Of course, the underlying policy question in these admissions practices is whether gender balance is educationally important. Those supporting gender considerations in admissions argue that gender balance is critical to the learning environment and academic discourse and, if a university population exceeds 60 percent male or female, it reaches a tipping point where the environment is not attractive to males or females. If this occurs, a university would find it hard to attract the most qualified applicants of either sex. Others are more skeptical and, even accepting the importance of gender balance, question how it justifies policies that exclude otherwise qualified females. Id. at 340-341.

Since so-called reverse discrimination in favor of men, however benign or remedial, is evaluated under the same standards as discrimination in favor of women, such policies benefiting men may pass constitutional review if remedying gender imbalance constitutes an exceedingly persuasive justification. Of course, the historical exclusion of women in education, the continuing wage and earning-capacity gap disadvantaging women, and the gross underrepresentation of women in leadership positions and fields such as science and engineering would undermine the argument that an exceedingly persuasive justification exists for preferring men and disadvantaging women in admissions. See Debra395 Franzese, The Gender Curve: An Analysis of Colleges’ Use of Affirmative Action Policies to Benefit Male Applicants, 56 Am. U. L. Rev. 719, 736-738 (2007). One author argues that affirmative action policies benefiting men should receive special attention to evaluate whether they rely on gender stereotypes and whether their purpose is “truly gender diversity rather than a mere attempt at gender balancing.” Id. at 738.

F. SCHOLARSHIPS AND TESTING

Absent important or exceedingly persuasive justifications, the foregoing cases indicate courts will be quick to strike down single-sex schools and programs that explicitly discriminate in admissions based on gender or apply different standards in determining admissions. Whether courts will do the same in regard to the use of criteria in admissions and scholarship awards that have a disparate impact on persons of one gender is far less clear. Title IX regulations prohibit recipients from “administer[ing] or operat[ing] any test or other criteria for admission which has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question and alternative tests or criteria which do not have such a disproportionate adverse effect are shown to be unavailable.” 34 C.F.R. §106.21(b)(2) (2012). But when the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001), held that Title VI regulations that prohibit disparate impact based on race do not create a private cause of action, the Court also indirectly called the enforceability of Title IX regulations into question because, in the past, the Court has tended to interpret Title IX and Title VI coextensively. The Supreme Court, however, has yet to clarify the scope of its decision in Sandoval, and lower courts have split over the viability of Title IX disparate impact claims.

The fact that Title IX’s prohibitions on gender disadvantage are, in some respects, broader and more comprehensive than Title VI’s prohibition on race discrimination might suggest disparate impact falls within the scope of Title IX. Supreme Court precedent recognizing causes of action for things such as student-on-student sexual harassment and retaliation suggests the same. But rigid interpretations of discrimination like those found in Sandoval suggest the opposite. In any event, the Department of Education is free to enforce its disparate impact regulations administratively. The following case explores disparate impact based on gender and how the lines between intent and impact blur.

Sharif by Salahuddin v. New York State Education Department

709 F. Supp. 345 (S.D.N.Y. 1989)

This case raises the important question of whether New York State denies female students an equal opportunity to receive prestigious state merit396 scholarships by its sole reliance upon the Scholastic Aptitude Test (“SAT”) to determine eligibility. To the Court’s knowledge, this is the first case where female students are seeking to use the federal civil rights statute prohibiting sex discrimination in federally-funded educational programs to challenge a state’s reliance on standardized tests. This case also presents a legal issue of first impression: whether discrimination under Title IX can be established by proof of disparate impact without proof of intent to discriminate.

After careful consideration, this Court finds that defendants are discriminating against female plaintiffs and their putative class in violation of Title IX and the equal protection clause. For the reasons set forth below, this Court enjoins the State Education Department (“SED”) and its Commissioner from awarding the merit scholarships at issue solely on the basis of the SAT.

New York State, in one of the most extensive merit scholarship programs in the country, each year makes 26,000 academic achievement awards to New York’s high school graduates. In order to understand the program’s current purpose, a brief recitation of the program’s evolution is appropriate.

In 1974, the legislature restructured its awards, creating two types of awards: first, “general awards” which provide substantial monetary assistance, and second, “academic performance awards” which recognize achievement. In the “general awards” category, the legislature created a Tuition Assistance Program (“TAP”) to fund college students based upon financial need. In 1977, the legislature directed that the scholarships be awarded on the basis of “nationally established competitive examinations.” [After examining several different exams,] the SED chose the SAT. [T]he entire SAT is labeled an “aptitude” test, and the SAT only purports to test two subjects—Math and English.

In response to allegations that the SED’s practice of relying solely upon the SAT in awarding Regents and Empire State Scholarships discriminated against females who consistently scored below males, the Board of Regents asked for $100,000 to develop a new scholarship achievement examination. The legislature declined to fund a special examination but, instead, amended the Education Law to require that the awards be based in part upon the student’s grade point average (“GPA”) as a measure of high school achievement. [The stated purpose was] “to correct a gross inequity that pervaded the New York educational system caused by awarding of Regents College Scholarships and Empire State Scholarships of Excellence based solely on the results of a nationally administered standardized examination.”

The new legislation [required, on a one-year experimental basis, that the criteria for awarding scholarships include] a measure of “high school performance.” [T]he SED chose to use GPAs as the best available measure of high school achievement. In 1988, under the procedure using a combination of grades and SATs weighted equally[,] women received substantially more Regents and Empire Scholarships than in all prior years in which the SAT had been the sole criterion. In both 1987 and 1988, young women comprised approximately 54 percent of the applicant pool for the scholarship, yet the results in 1988 when grades and SATs were used were markedly different. [Females received 38 percent of the Empire Scholarships in 1988 as opposed to 28 percent the previous year, and 49 percent of the Regents Scholarships in 397 1988 as opposed to 43 percent the previous year.] When GPAs were used in 1988, the mean GPAs were: 85 for females and 84.4 for males.

In September, 1989, the SED determined that it would award Regents and Empire Scholarships on the basis of SAT scores alone. It is the SED’s sole reliance on SAT scores for 1989 graduates that plaintiffs complain denies them equal protection under the fourteenth amendment to the U.S. Constitution and violates Title IX.

The Educational Testing Service (“ETS”) developed the SAT in order to predict academic performance in college. The ability of the SAT to serve this purpose has been statistically “validated.” It is undisputed, however, that the SAT predicts the success of students differently for males and females. In other words, while the SAT will predict college success as well for males within the universe of males as for females within the universe of females, when predictions are within the combined universe of males and females, the SAT underpredicts academic performance of females in their freshman year of college, and overpredicts such academic performance for males. The SAT has never been validated as a measure of past high school performance.

Both the ETS and the College Board, which administers the SAT, specifically advise against exclusive reliance upon the SAT, even for the purpose for which the SAT has been validated—predicting future college performance. Instead, ETS researchers recommend that college admissions counselors use a combination of high school grades and test scores because this combination provides the highest median correlation with freshman grades.

Notwithstanding ETS and [National Association of College Admission Counselors] guidelines recommending against using the SAT as the sole basis on which to award scholarships or offer admissions, the SED adopted such a policy in 1974. New York State is one of only two states in the nation to rely solely on SAT scores for the award of state-sponsored merit. Most states rely, at least in part, upon GPAs.

Both the Empire and Regents Scholarships are intended to reward past academic achievement of high school students, and to encourage those students who have demonstrated such achievement to pursue their educations in New York State. It is undisputed, however, that the SAT was developed and validated to serve a different purpose—predicting performance in college.

[Nonetheless], it is the SED’s current position that the SAT provides a good measure of high school performance because it “measures skills and knowledge primarily developed in school.” The SED does not dispute that the SAT does not measure performance in all high school courses, but claims merely that the SAT partially tracks high school English and Math courses and thus tests achievement. The SED concedes that the SAT does not measure achievement in other subject matters such as science, social studies, and foreign languages. Moreover, the SED concedes that overall GPAs are a better measure of high school performance than SATs.

Males have outscored females on the verbal portion of the SAT since 1972, with an average score differential of at least 10 points since 1981. Males have also consistently outscored females on the mathematics portion, with an average differential of at least 40 points since 1967. Statisticians have attempted to398 explain the score differentials between males and females by removing the effect of “neutral” variables, such as ethnicity, socioeducational status (parental education), high school classes, and proposed college major. [E]ven after removing the effect of these factors, at least a 30 point combined differential remains unexplained.

As a result of the State’s practice of basing scholarship awards solely upon SAT scores, males have consistently received substantially more scholarships than females. In 1987 for example, males were 47 percent of the scholarship competitors, but received 72 percent of the Empire State Scholarships and 57 percent of the Regents Scholarships.

Plaintiffs do not claim that defendants have intentionally discriminated against them based on their sex. Rather, they claim that defendants’ practice of sole reliance upon SAT scores to award prestigious state scholarships disparately impacts female students.

Neither the Supreme Court nor any court in the Second Circuit has determined whether intent must be shown in Title IX cases. This Court, however, is not without substantial guidance. Recognizing that “Title IX was patterned after Title VI of the Civil Rights Act of 1964,” courts examining Title IX questions have looked to the substantial body of law developed under Title VI, 42 U.S.C. §2000d, which prohibits race discrimination in federally-funded programs, and Title VII, 42 U.S.C. §2000e, which prohibits discrimination in employment.

In Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582, (1983), the Supreme Court held that a violation of Title VI itself requires proof of discriminatory intent. However, a majority also agreed that proof of discriminatory effect suffices to establish liability when a suit is brought to enforce the regulations promulgated under Title VI, rather than statute itself. [As other courts have held, the same rationale applies to Title IX.]

Several Title IX regulations specifically prohibit facially neutral policies. For example, the provision governing admissions procedures, 34 C.F.R. §106.21(b)(2), prohibits a recipient from

administer[ing] or operat[ing] any test or other criteria for admission which has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question and alternative tests or criteria which do not have such a disproportionate adverse effect are shown to be unavailable.

See also 34 C.F.R. §§106.22, 106.23(b), 106.34(d), 106.37(b), 106.52, and 106.53(b).

Based upon a reading of the Title IX regulations, as well as the decisions that apply them, the Court finds that Title IX regulations, like the Title VI regulations at issue in Guardians, prohibit testing practices with a discriminatory effect on one sex. Consequently, plaintiffs need not prove intentional discrimination.

In Title VII testing cases, the Supreme Court developed a three-pronged formulation to analyze disparate impact claims. Under this scheme, plaintiffs first must show that a facially neutral practice has a disproportionate effect. After such a showing, the burden shifts to defendants to prove a substantial399 legitimate justification—a “business necessity”—for its practice. The plaintiff then may ultimately prevail by offering either an equally effective alternative practice which has a less of a discriminatory impact, or proof that the legitimate practices are a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

In educational testing cases, instead of requiring defendants to demonstrate a “business necessity,” courts have required defendants to show an “educational necessity.” For example, the Eleventh Circuit, in Georgia State Conf. of Branches of NAACP v. State of Georgia, 775 F.2d 1403 (11th Cir. 1985), held that defendants had a burden of proving that their practices in question bore “a manifest demonstrable relationship to classroom education.”

Plaintiffs have met their burden of establishing a prima facie case through persuasive statistical evidence and credible expert testimony that the composition of scholarship winners tilted decidedly toward males and could not have occurred by a random distribution.

Plaintiffs, moreover, have established that the probability, absent discriminatory causes, that women would consistently score 60 points less on the SAT than men is nearly zero. Defendants concede that at least half of this differential cannot be explained away by “neutral” variables. Based upon the totality of evidence, then, this Court finds that plaintiffs have demonstrated that the State’s practice of sole reliance upon the SAT disparately impacts young women.

Thus, to prevail, defendants must show a manifest relationship between use of the SAT and recognition and award of academic achievement in high school. The Court finds that defendants have failed to show even a reasonable relationship between their practice and their conceded purpose. The SAT was not designed to measure achievement in high school and was never validated for that purpose. Instead, defendants rely upon anecdotal evidence that the SAT partially tracks what is generally learned in high school Math and English courses. This argument is meritless.

Plaintiffs have offered substantial evidence that the SATs do not mirror high school Math and English classes. The makers of the SAT describe the test as an “aptitude test”; it does not purport to measure what is learned in classrooms but to predict success in college. The testing format of the SAT measures students’ ability to take tests at least as much as it measures substantive material.

Moreover, even if SATs provided a partial measurement of what is learned in high school Math and English, these two courses constitute only 20 percent of a high school student’s studies. The SAT fails to provide any measure of what a student learns in foreign language, science, and social studies courses. Moreover, there can be no serious claim that a test given on one single morning can take into account a student’s diligence, creativity and social development and work habits in that student’s environment—all part of high school achievement. After a careful review of the evidence, this Court concludes that SAT scores capture a student’s academic achievement no more than a student’s yearbook photograph captures the full range of her experiences in high school.

Plaintiffs have offered an alternative to sole reliance upon the SAT: a combination of GPAs and SATs. The SED’s use of this alternative in 1988 sharply reduced the disparate impact against females caused by the use of the SAT alone.400 Defendants concede that females had a greater opportunity to receive scholarships under the combination system. Defendants also concede that grades are the best measure of high school achievement within the walls of a single school. Instead, they argue that since there is a disparity among schools and their grading systems it is both unfair and impossible to use grades as part of the scholarship eligibility determination. Defendants plan instead to develop a statewide achievement test. While this Court does not dispute the apparent advantages of a statewide achievement test—if indeed a valid test can be developed—it does not agree that pending the implication of such a test, use of grades would be either unfair or infeasible.

While a combination system—using both GPAs and SATs—is not a perfect alternative, it is the best alternative presently available. The SED is concerned that students in academically superior high schools not be disadvantaged by the use of GPAs. This concern is addressed by the combination system because in effect grades would be weighted by SATs. [Any negative effect on good students at superior schools of using GPAs would be ameliorated by the SATs and, of course, the use of GPAs would be fair because it serves the state’s overall goal of rewarding high school performance and would better provide equal opportunity for scholarships to both male and female students.]

The SED cannot justify its discriminatory practice because any alternative would be more difficult to administer. All states giving merit scholarships awards, with the exception of New York and Massachusetts, use GPAs, without concern for either administrative difficulties, grade inflation or the comparability of grades

Faced with a conflict between the SED’s administrative concerns on the one hand, and the risk of substantial discriminatory harm to plaintiffs on the other, the Court has little difficulty in concluding that the balance of hardships tips decidedly in plaintiffs’ favor. The Court finds that plaintiffs have offered a feasible alternative to sole reliance upon SATs. Accordingly, the Court finds that plaintiffs have demonstrated a likelihood of success on the merits of their Title IX claim and, thus, a preliminary injunction is warranted.

The classification of scholarship applicants solely on the basis of SAT scores [also] violates the equal protection clause of the Fourteenth Amendment because this method is not rationally related to the state’s goal of rewarding students who have demonstrated academic achievement.

Under the lowest standard of equal protection review—the “rational relationship standard”—“[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). Although considerable deference is given to the decisions of legislators and state administrators under the rational basis test, the test “is not a toothless one.”

For the reasons stated above, the SED’s use of the SAT as a proxy for high school achievement is too unrelated to the legislative purpose of awarding academic achievement to survive even the most minimal scrutiny. The evidence is clear that females score significantly below males on the SAT while they perform equally or slightly better than males in high school. Therefore, the SED’s use of the SAT as the sole criterion for awarding Regents and Empire401 Scholarships discriminates against females and, since such a practice is not rationally related to the legislative purpose, it unconstitutionally denies young women equal protection of the laws.

Defendants are hereby ordered to discontinue such discriminatory practices and, instead, to award Regents and Empire Scholarships in a manner that more accurately measures students’ high school achievement. For the present year, the best available alternative is a combination of grades and SATs. The SAT component is justified, not as a measure of achievement, but to weight the GPA component. The Court, however, does not limit the SED’s discretion to develop other alternatives in the future, including a statewide achievement test.

NOTES AND QUESTIONS

1. What does a plaintiff have to show to establish a claim of disparate impact? What did the plaintiffs show here? Should the law prohibit these sorts of disparate impacts, or, in the absence of intentional discrimination, would a legal prohibition interfere with legitimate educational policymaking?

2. Why did the state move away from SAT scores in the first instance? If the motive was to reduce gender inequity, why did it move back to the SAT? Did its motives change over time? Did the inclusion of GPAs produce too much equality, and thus the return to the SAT as a sole determinate was gender motivated, or did the state have legitimate educational concerns? To the extent the state had gender motivations that were not aimed at producing more equality, one could argue that the state engaged in intentional discrimination. See, e.g., Pryor v. NCAA, 288 F.3d 548 (3d Cir. 2002) (a decision to increase academic eligibility standards that included racial considerations stated a claim of discrimination).

3. As you will see in Chapter 11, much of current educational reform efforts concern (1) standardized testing, (2) the validity of such tests as determinant of academic achievement, (3) the effect on student due process rights, (4) the perpetuation of past inequalities, (5) the disparate impact of such tests on disenfranchised groups, and (6) the consequences of poor test results.

4. Do you agree that standardized tests are indicative of potential for academic achievement in higher education? Considering that schools and districts have different expectations of students, curricula, and grading criteria, how should universities and scholarship committees compare students from different schools?

5. The court notes that there was at least a 30-point differential between men and women after controlling for socioeconomic variables. Where should courts draw the line between disparities that indicate disparate impact and disparities that are minimal and thus not actionable?

6. The Code of Federal Regulations, 34 C.F.R. §106.21(b)(2), prohibits the use of tests that have a “disproportionately adverse effect on persons on the basis of sex.” See also 34 C.F.R. §§106.36(b), 106.52 (2012). Although administrative agencies have expressed authority to enforce this provision, it was not until Cannon v. University of Chicago, 441 U.S. 677 (1979), that plaintiffs had a cause of action to enforce Title IX using disparate impact theories. Afterward, many402 courts, including the Sharif court, allowed plaintiffs to challenge testing in elementary and secondary schools that disparately impacted protected groups. See, e.g., Johnson v. Sikes, 730 F.2d 644 (11th Cir. 1984); Brookhart v. Bd. of Educ., 697 F.2d 179 (7th Cir. 1983); Anderson v. Banks, 520 F. Supp. 472 (S.D. Ga. 1981); Debra P. v. Turlington, 730 F.2d 1405 (11th Cir. 1984). In the 2001 case Alexander v. Sandoval, 532 U.S. 275, however, the Supreme Court held that regulations enacted pursuant to Title VI, which Title IX mirrors, do not provide a private cause of action and that intentional discrimination must be proved to establish a violation. Id. at 380. Are there distinctions between Title IX and Title VI that would suggest a cause of action for disparate impact should exist under Title IX, even if it does not under Title VI?

While Sandoval can be read as the death knell of disparate impact, a more detailed and nuanced view suggests that

Sandoval must be understood as but one among a series of cases where the Court has recently explored liability under Title VI and Title IX. These cases demonstrate that intentional discrimination is not a narrow concept restricted solely to instances where race or gender played a role in a funding recipient’s decision. The Gebser [v. Lago Vista Independent School District, 524 U.S. 274 (1989)] line of cases demonstrates that a defendant also violates Title VI and Title IX when it takes intentional action/inaction that causes, contributes to, or perpetuates the discrimination or disadvantages that occur within its programs. Such a violation occurs, even when the defendant did not initially desire or act to create discrimination or disadvantage, if the discrimination and disadvantage continue to occur because the defendant knowingly refuses or fails to intervene.

PROBLEM

In 2012, the state of North Virginia commissioned a study that compared males’ and females’ high school performance to their college performance. The study revealed that high school GPAs now tend to underpredict males’ performance in college, but tend to predict many females’ performance correctly. Because males tend to have lower high school GPAs than females and GPAs are the most significant factor in admission to the state’s public universities, males’ enrollment has steadily dropped over the past decade at all of the state’s university campuses. At several campuses, including the flagship school, male enrollment hovers around 40 percent. A more heavy reliance on standardized exams, such as the SAT, would increase male enrollment and more accurately predict their future performance in college, but it would reduce the number of females. The university system states that the primary purpose of its admissions policies is to identify those applicants who are most likely to succeed in higher education.

Does the heavy reliance on high school grades give rise to a disparate impact claim on behalf of males? Regardless, can you devise an admissions policy that eliminates males’ disadvantage without violating the rights of women?

403

G. ATHLETICS

1. Constitutional Standard

While single-sex education, admissions, and testing raise crucial questions about how to deliver quality and equal educational opportunities, Title IX’s effect on sports has often drawn more public attention. Title IX has been instrumental in expanding athletic interest and opportunities among females at all levels. In the 1971-1972 school year, only about 7.4 percent of high school athletes were female. See generally Women’s Sports Found., Play Fair: A Title IX Playbook for Victory (2009). By the 2007-2008 school year, female students accounted for more than 41 percent of high school athletes—a 940 percent increase in the number of females participating in high school athletics compared to only a 19 percent increase for males. Id. For NCAA varsity athletics, women accounted for only 14.9 percent of athletes in the 1971-1972 school year, but by the 2004-2005 school year, women made up about 42.8 percent of varsity college athletes, a 456 percent increase in the number of women athletes compared to only a 31 percent increase for men. See generally Nat’l Coal. for Women & Girls in Educ., Title IX at 35: Behind the Headlines 8 (2008). But some charge that these gains are forced and have come at the expense of males. Others would argue that we still have further to go, as sports are generally sex segregated and continue to perpetuate gender stereotypes that undermine equality not only in sports but education and society in general. Likewise, disparities in terms of participation, resources, publicity, coaching, and support persist. See generally id.

The following case evaluates the meaning of equal opportunity in athletics, the role gender stereotypes may play in limiting equality, and how Title IX and the Constitution might differ in their treatment of the issues. As you read this and subsequent materials, continue to consider broad questions such as whether the reasons for gender separation in sports are important and whether there are circumstances in athletics where equality requires us to separate students by gender. Regardless of your initial responses to these questions, consider whether any benefits that might come out of gender separation in sports are outweighed by the messages that the separation conveys. Eliminating sex segregation in sports is, no doubt, a radical idea. But is the idea extreme because of practicalities and cultural expectations or because it forces an unrealistic and counterproductive concept of equality?

Force v. Pierce City School District

570 F. Supp. 1020 (W.D. Mo. 1983)

Nichole Force, a thirteen year old female student in the eighth grade at the Pierce City, Missouri, Junior High School, seeks an injunction which would allow her to compete for a place on the school’s eighth grade football team. Her claims are relatively simple: that defendants’ refusal to accord her that opportunity is based solely upon the fact that she is a female rather than a male, and that a sex-based determination of that sort violates her right to the equal protection of the laws under the Fourteenth Amendment.

404

Pursuant to its statutory authority, the Pierce City Board has for some time maintained an athletic program at both the junior and senior high school levels. [T]here is no football team for girls, and no volleyball team for boys.

[In] the spring of 1982, Nichole Force mentioned to her mother that she [wanted to try] out for the seventh grade football team. After an apparently frank discussion, Mrs. Force decided to approach the school authorities to see what might be done. Mrs. Force spoke first with the boys’ athletics coach for the school. He stated that so long as the school administration approved, he would let Nichole participate. [S]chool administrative officials advised her that the matter would have to be presented to the Board for its decision.

[Mrs. Force met with the Board twice. At those meetings, the Board expressed concern over the potential safety risks to a female competing with males, the “potential precedent involved in granting the request (e.g., the possibility that boys would wish to participate on the girls’ volleyball team, and that high school girls might wish to play on the high school football team),” the administrative difficulties that may result, and that Title IX may prohibit coeducational participation in a contact sport.]

[T]he Board voted unanimously to deny [Force’s request to try out for the team]. According to Mrs. Force, defendant John Williams explained the decision by stating that while “they all agreed” Nichole would be a good football player and would have no problems playing, if she were permitted to play the same allowance would have to be made for all other girls as well.

The record makes clear that defendants’ refusal to grant plaintiff’s request is the product of a gender-based classification. Stated simply, only males are permitted to compete for a place on the Pierce City Junior High School football team. Since Nichole is a female, that opportunity is denied to her.

The principles which must govern in this situation are summarized in the Supreme Court’s recent decision in Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982). [Hogan requires that the discriminatory means employed are substantially related to achieving important governmental objectives. This test] must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the objective itself reflects archaic and stereotypic notions. Thus if the objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.

Defendants do not quarrel with the fact that the present case must be governed by these principles. They argue, rather, that in the circumstances shown here a gender-based classification fully satisfies those principles. To that end, they identify four “important governmental objectives” which are said to be at stake: (a) maximization of equal athletic educational opportunities for all students, regardless of gender; (b) maintenance of athletic educational programs which are as safe for participants as possible; (c) compliance with Title IX and the regulations thereunder; and (d) compliance with the constitution and by-laws of MSHSAA [Missouri State High School Athletic Association]. According to defendants, there is a “substantial relationship” between each of these objectives and a gender based classification which would prevent any female from competing with males for a place on the eighth grade football team.

405

Defendants’ [Title IX argument] can be dealt with in short order. There is in fact nothing whatsoever in Title IX, or in its implementing regulations, which would mandate the action defendants have taken here. To the contrary, Title IX’s regulations leave each school free to choose whether co-educational participation in a contact sport will be permitted. Title IX simply takes a neutral stand on the subject.

[D]efendants’ point regarding compliance with MSHSAA rules [have even less force]. Defendants’ first two points, however, are deserving of more detailed treatment. Each will be examined separately below.

One might wonder, at first blush, how denying all females the right to participate in [football] will result in maximizing the participation of both sexes in athletics. That argument proceeds on three interrelated theories. Defendants suggest, first, that males (as a class) will outperform females (as a class) in most athletic endeavors, given male size, speed and greater ratio of lean body mass. That being so, the argument proceeds, the best way in which to encourage and maximize female participation in athletics is by providing separate male and female teams, since otherwise males will dominate the competition and ultimately discourage female participation. Pursuant to this idea, defendants have established separate interscholastic athletic programs for the two sexes, with the fall season sport being football for males and volleyball for females. But if (second) Nichole Force is permitted to compete for a place on the football team, then other girls must be accorded the same privilege, and boys must be allowed to compete for positions on the volleyball team. When (third) that happens, the girls will lose their best athletes, the boys will come to dominate volleyball, and overall female participation will ultimately wither.

Based upon the expert testimony presented in this case I am willing to accept the proposition that the average male, even at age 13, will to some extent outperform the average female of that age in most athletic events, although the matter may be open to some dispute.⁶ And I note, without being called upon to decide the issue, that a number of courts have held that the establishment of separate male/female teams in a sport is a constitutionally permissible way of dealing with the problem of potential male athletic dominance. Beyond these two points, however, I am unable to accept defendants’ argument.

The principal difficulty is that the various hypotheses used to bind [defendants’ argument] together are just that—hypotheses, and nothing more. There is, for example, no factual indication that the girls’ eighth grade volleyball team406 will be blighted by the defection of its best players to the football field. To the contrary, defendants’ own testimony is that Nichole Force is the first and only girl, at any grade level, who has ever made a request to play football. And for that matter, if defendants are correct in their position that females are unable to compete successfully with males in athletics, particularly in contact sports, it is to be expected that such defections would be short-lived in any event, and that the situation would prove to be self-regulating.

Nor is there any factual indication that eighth grade boys at Pierce City Junior High School are waiting eagerly for volleyball to be desegregated. Again to the contrary, there is no indication that any boy has ever expressed a desire to play on the volleyball team. Indeed, there may be something of a false premise involved in the idea that volleyball in the Pierce City School District is in fact segregated, since nothing in the MSHSAA rules would prevent boys from competing with girls on a volleyball team, and since defendants themselves have never articulated any such rule.⁷ Instead, it would seem, the question has simply never arisen. And in any event, it is by no means clear that the District would be constitutionally required to permit boys to participate in girls’ volleyball, even if girls were allowed to participate in football. See Clark v. Arizona Interscholastic Ass’n, 695 F.2d 1126, 1131-32 (9th Cir. 1982) (holding that the governmental interest in redressing past discrimination against women in athletics is sufficient to justify a regulation which excludes boys from participating on girls’ teams, even though girls are allowed to compete on boys’ teams); Petrie v. Illinois High Sch. Ass’n, 394 N.E.2d 855 (1979) (same).

Finally, even if by some chance defendants’ worst case scenario should be realized, there might still be no need for the general breakdown which defendants postulate. For example, if a sufficient number of girls wish to play football, one obvious solution would be to organize a girls’ football team; or if so many boys wish to play volleyball that they would dominate the girls’ competition in that sport, to form a boys’ volleyball team. Such solutions would of course presumably involve added expense to the District, but there is no evidence on how troublesome that factor might be.

There is, however, a further point implicit in defendants’ argument: the apparent assumption that if, in the interest of maximizing equal athletic opportunities, it is constitutionally permissible to establish separate male and female teams in a given sport and to exclude each sex from the other’s team, then it is equally permissible, in that same interest, to designate separate male and female sports and to exclude each sex from participation in the other’s sport. That is a proposition I am unwilling to accept, at least as a general matter.

Each sport has its own relatively unique blend of requirements in terms of skills and necessary physical attributes, and each person, male or female, will for a variety of reasons probably find one or another sport more enjoyable and rewarding than others. In point of fact, volleyball is not football; and baseball407 is not hockey; and swimming is not tennis. Accordingly, if the idea is to “maximize educational athletic opportunities for all students, regardless of gender,” it makes no sense, absent some substantial reason, to deny all persons of one sex the opportunity to test their skills at a particular sport. Of course there may be certain exceptional instances in which there is a “substantial reason” for such an exclusion, as for example where peculiar safety and equipment requirements demand it, or perhaps where excluding males is necessary to redress past inequality and to foster female participation. But those instances would, I think, be relatively rare, and would need to be factually established.

I do not question the idea that maximizing the participation of both sexes in interscholastic athletic events is a worthy, and important, governmental objective. Nor do I question the sincerity of defendants’ efforts in that regard. In the circumstances of this case, however, I hold that the gender based classification used by defendants does not bear a sufficiently “substantial” relationship to that objective to withstand a constitutional challenge.

Neither do I question the fact that the “maintenance of athletic educational programs which are as safe for participants as possible” is an “important governmental objective.” Indeed, that would seem obvious. Again, however, the facts of this case do not demonstrate a sufficiently “substantial” relationship between that objective and a blanket rule which prohibits all eighth grade females from competing for a place on the eighth grade football team.

There is no evidence, or even any suggestion, that Nichole Force herself could not safely participate in that football program. And while I do find, from the expert testimony presented, that a “typical” (i.e., average) 13 year old female would in fact, to some degree, have a higher potential for injury in mixed-sex football than would a “typical” (i.e., average) 13 year old male, this does not in my judgment greatly assist the defendants’ argument.¹² The problem, of course, is that not all 13 year old females are “typical,” any more than all 13 year old males are “typical.” Indeed, as defendants’ own expert candidly admitted, some 13 year old females could safely play eighth grade football in mixed sex competition, and some 13 year old males could not. And yet I note that the School District permits any male to compete in football, regardless of his size, speed, body type, lean body mass, fat body mass, bone structure, “Q” angle measurement or any other factor which might have a bearing on his potential for injury.

In short, the “safety” factor which defendants would utilize to prevent any female from playing eighth grade football—including those who could play safely—is not applied to males at all, even to those who could not play safely.408 All this tends to suggest the very sort of well-meaning but overly “paternalistic” attitude about females which the Supreme Court has viewed with such concern.

It is of course true, as defendants point out, that the Supreme Court has recognized that governmental bodies are free to take into account actual differences between the sexes, including physical ones, with the result that a statute or policy which employs a gender based classification will be upheld where that classification merely reflects the fact that the sexes are not “similarly situated” in certain circumstances. I do not, however, read such observations to be an endorsement of the use of broad generalizations which—while perhaps empirically supported as generalizations—do not hold true for all members of a sex. In fact the Supreme Court has rather consistently rejected that idea, since a gender based classification which results from ascribing a particular trait or quality to one sex, when not all share that trait or quality, is not only inherently unfair but generally tends only to perpetuate “stereotypic notions” regarding the proper roles of men and women.

This is not to say that reliance upon a factually established generalization concerning a particular male or female trait might never be appropriate. But there must obviously be a substantial justification (or perhaps even an “exceedingly persuasive” justification), for using such an imprecise and potentially mischievous tool for these purposes; and the only justification which might even arguably be applied in such circumstances would be that of “administrative ease” to the governmental body. That, in turn, is an argument which has never fared well at the hands of the Supreme Court and I reject it here for the simple reason that it is sophistry to suggest a concern with the “administrative burden” of weeding out physically unfit 13 year old females in connection with a football program when there is no concern at all with weeding out physically unfit 13 year old males involved in the same program. In fact, I think, it might be rather difficult to sustain a requirement that females competing for a place on a particular athletic team be subjected to a fitness screening program, when males competing for a place on the same team are subjected to none at all.

I conclude, accordingly, that there is an insufficient relationship between defendants’ announced goal of “safety” and a rule which automatically excludes all eighth grade females from competing with eighth grade males for a place on a football team. That holding is consistent with the result reached by virtually every other court which has considered this same sort of “safety” argument in connection with male/female competition in contact sports.

Nichole Force obviously has no legal entitlement to a starting position on the eighth grade football team, since the extent to which she plays must be governed solely by her abilities, as judged by those who coach her. But she seeks no such entitlement here. Instead she seeks simply a chance, like her male counterparts, to display those abilities. She asks, in short, only the right to try.

I do not suggest there is any such thing as a constitutional “right to try.” But the idea that one should be allowed to try—to succeed or to fail as one’s abilities and fortunes may dictate, but in the process at least to profit by those things which are learned in the trying—is a concept deeply engrained in our way of thinking; and it should indeed require a “substantial” justification to deny that409 privilege to someone simply because she is a female rather than a male. I find no such justification here.

NOTES AND QUESTIONS

1. What is the district’s basis for excluding Ms. Force? Are any of its objectives legitimate? If so, why does the court strike down the policy?

2. The district asserts, and the court accepts, that 13-year-old girls, on average, are more susceptible to injury than boys. Why then isn’t the district’s policy substantially related to an important state interest in safety? Is football safe for any child, male or female? Does the average propensity for injury of either sex have any bearing on the legitimacy of this policy? Recent statistics show that there were 502,000 emergency room visits by children for concussions between 2001 and 2005. Half of these visits were sports related in some respect and, of those sports-related visits, most were in connection with an organized team for football, basketball, baseball, soccer, or ice hockey. During this time period, about 5 out of 1,000 children visited the emergency room in connection with a sport-related concussion. Concussions in Young Athletes on the Rise, Especially in Hockey and Football Players, Sci. Daily, Sept. 10, 2010.

3. The court indicates that separate football teams may be constitutionally permissible. Are there any potential problems with this option?

4. As you may have noticed in the Title IX excerpts, and as discussed in Force, there is no requirement that schools allow women to try out for men’s contact sports teams. Critics suggest that the exception perpetuates the ideology of male superiority and female fragility, and the rationality of gender segregation and subordination. See Deborah Brake, The Struggle for Sex Equality in Sport and the Theory Behind Title IX, 34 U. Mich. J.L. Reform 13, 144 (2001); Jessica Constance Caggiano, Girls Don’t Just Wanna Have Fun: Moving Past Title IX’s Contact Sports Exception, 72 U. Pitt. L. Rev. 119 (2010). Thus, they advocate for the elimination of the contact sports exception. Moreover, one critic argues that the exception could be eliminated without leading to the parade of horribles assumed by those who defend the exception. For instance, sports teams could be organized by height and weight rather than gender. Boys and girls above a particular height and weight could try out for one team and those below a particular height and weight could try out for the other team. Caggiano, supra, at 140-141. This would preserve the competitive nature of sports while still providing numerous equal opportunities for members of both sexes.

5. How does the judicial application of the heightened scrutiny standard in Force compare to the application in cases such as VMI? In important respects, the rationale of Force is a forerunner to VMI.

6. As noted by Force, the court in Clark v. Arizona Interscholastic Ass’n, 695 F.2d 1126, 1131-1132 (9th Cir. 1982), held that the prohibition of males on volleyball teams is substantially related to the important governmental interest of redressing past discrimination against women in athletics and promoting equality of athletic opportunity between the sexes. The court reasoned that410 “due to average physiological differences, males would displace females to a substantial extent if they were allowed to compete for positions on the volleyball team. Thus, athletic opportunities for women would be diminished.” Id. The court argued that this finding was not embracing archaic stereotypes, but rather recognizing physiological differences disadvantaging women. Is this rationale sound?

7. As the participation levels of women in sports begin to increase and discrimination fades, will the rationale for excluding males from sports like volleyball erode, or will the potential for undermining female opportunities always justify the exclusion of males? If volleyball, like football, is unique, can the state any more deny a boy the experience than it can deny women enrollment in VMI or Ms. Force the opportunity to try out for football? Is the exclusion of males symbolically and practically different than the exclusion of women in that men do not suffer stigma and their inclusion really would undermine equal opportunity for women?

2. Contact Sports Exception

As noted above, Title IX excludes contact sports from the purview of its requirement of gender equality in athletic programs (although Force v. Pierce City School District, 570 F. Supp. 1020 (W.D. Mo. 1983), indicates that equal protection standards still control for public institutions). The Department of Education’s Title IX regulations provide that “[n]o person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.” 34 C.F.R. §106.41(a) (2012). But the very next subsection of the regulations states that, notwithstanding the foregoing,

a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

Id. §106.41(b).

In Mercer v. Duke University, 190 F.3d 643 (4th Cir. 1999), the court of appeals reasoned that in noncontact sports “covered institutions must allow members of an excluded sex to try out for single-sex teams.” Id. at 647-648. For contact sports, institutions need not allow the excluded sex to try out, but if they voluntarily permit the excluded sex to try out, the exemption for contact411 sports becomes irrelevant and the institution must comply with the general antidiscrimination provision of Title IX. Based on this rationale, the court of appeals held that Heather Sue Mercer’s allegation that Duke permitted her to try out for the football team and told her she made the team, only to later refuse to permit her to participate as a full member of the team, stated a claim under Title IX. Id. at 648. The court distinguished and rejected other courts’ opinions that suggest that Title IX creates a complete exemption for differential treatment in contact sports. See, e.g., Williams v. Sch. Dist. of Bethlehem, Pa., 998 F.2d 168, 174 (3d Cir. 1993). In doing so, the Fourth Circuit became the first court to recognize such a claim. Two lower courts have followed its lead. Phillips v. Anderson Cnty Bd. of Educ., 2006 WL 3759893, at *8 (E.D. Tenn. 2006); Palmer ex rel. Palmer v. Santa Rosa Cnty., Fla., Sch. Bd., 2005 WL 3338724, at *5 (N.D. Fla. 2005).

Some have argued that the impetus for the Title IX exemption for contact sports, in general, and basketball and football, in particular, is the NCAA’s vigorous lobbying to protect these revenue-producing sports. Crista D. Leahy, The Title Bout: A Critical Review of the Regulation and Enforcement of Title IX in Intercollegiate Athletics, 24 J.C. & U.L. 489, 493-496 (1998).

[Title IX athletics regulations] define the term “contact sports” so broadly and arbitrarily that the exception swallows the rule and undermines Title IX’s raison d’etre in the athletic arena. Indeed, their practical impact is that Title IX often functions as an additional impediment to female athletes. As the Third Circuit so aptly described it, “the contact sports exception is…the broadest exception recognized to the overarching goal of equal athletic opportunity.”

The rationale for female exclusion from contact sports is two-fold. First, powerful lobbies have sought to protect the status-quo ante—the all-male bastions of college basketball and football. Second, powerful and longstanding paternalistic stereotypes focus on the relative fragility of the female body. Such stereotypes posit that no females should play contact sports with males because females are inherently weaker, slower, and less coordinated than males, and thus are prone to debilitating injuries when they play rough sports with males. Such physical stereotypes mix with cultural stereotypes. Our “instincts” may tell us, for example, that there is something unseemly, something dangerous and wrong, about scantily clad females taking scantily clad males to the mat to struggle and strain and sweat in a tumble of flesh, snot, saliva and even blood. Such a scenario is not properly part of a wholesome and egalitarian American education.

The historic exclusion of females from athletics generally, and particularly from contact sports, combined with cultural taboos for women against developing “male” qualities of physical stamina and strength, muscle mass, and overt aggressive competitiveness, have surely been central components of female dependence and vulnerability to violence. Moreover, benefits touted to justify large expenditures on male athletic opportunities—the emphasis on character building, leadership development, learning team work, learning to excel in highly competitive environments—would equally advantage female citizens in this competitive market economy. Unfettered participation in athletics for women, not as the sexy, silly decorative cheerleaders for male athletes, but as full status athletes entitled to the respect and political and economic opportunities showered upon male athletes would have wide cultural repercussions.

Suzanne Sangree, Title IX and the Contact Sports Exemption: Gender Stereotypes in a Civil Rights Statute, 32 Conn. L. Rev. 381, 382-383 (2000).

412

NOTES AND QUESTIONS

1. As indicated above, the Title IX regulations define “contact sports [to] include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.” 34 C.F.R. §106.41(a)-(b) (2012). Is this list of sports and the definition of contact sports either over- or under-inclusive? Are there any other sports that should be included or excluded? What sports may fall into the category of a sport where “the purpose or major activity of which involves bodily contact”? How would the Mercer and Force courts examine: baseball or ice hockey? See Cook v. Colgate, 802 F. Supp. 737 (N.D.N.Y. 1992); Leffel v. Wis. Interschol. Athletic Ass’n, 444 F. Supp. 1117 (E.D. Wis. 1978); Carnes v. Tenn. Secondary Sch. Athletic Ass’n, 415 F. Supp. 569 (E.D. Tenn. 1976). Field Hockey? B.C. v. Bd. of Educ. Cumberland Reg’l Sch. Dist., 531 A.2d 1059 (N.J. Super. Ct. App. Div. 1987); Kleczek v. R.I. Interschol. League, Inc., 768 F. Supp. 951 (D.R.I. 1991); see also Williams, 998 F.2d at 169-170 (holding that the determination of whether field hockey is a contact sport is a triable issue of fact).

2. Does the regulatory contact sports exemption contradict the purpose of Title IX’s athletics provisions? Is it inconsistent with the Constitution? Is the effect of the exemption to perpetuate stereotypes and gender inequities rather than address them?

3. Some state courts have found that their state constitutional gender discrimination provision prohibits discrimination against women in contact sports. See NOW v. Little League Baseball, Inc., 318 A.2d 33 (N.J. Super. 1974); Commonwealth v. Pa. Interschol. Athletic Ass’n, 334 A.2d 839 (Pa. Commw. 1975); Darrin v. Gould, 540 P.2d 882 (Wash. 1975) (football); see also Att’y Gen. v. Mass. Interschol. Athletic Ass’n, 393 N.E.2d 284 (Mass. 1979) (holding that boys cannot be excluded from girls’ teams).

3. Determining Equal Treatment Under Title IX’s Athletic Provisions

Title IX regulations require all educational institutions receiving federal funds to perform self-evaluations and to provide written assurances that the institution is in compliance with the terms of Title IX and its regulations. 34 C.F.R. §106.3-106.4 (2012). The Department of Education looks at ten aspects of a school’s athletic program in assessing whether a school is providing equal treatment:

(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, practice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity.

413 Id. §106.41(c). Note that the equal treatment factors do not require equal expenditures for male and female teams, although the Department of Education may consider the failure to provide needed funds for teams for one sex in considering equality of opportunity. Id.

In 1979, the Department of Health, Education, and Welfare (HEW) clarified what it means to “provide equal athletic opportunities for members of both sexes and to effectively accommodate students’ athletic interests and abilities.” Intercollegiate Athletics Policy Interpretation, 44 Fed. Reg. 71,413 (1979) (adopted by the Department of Education when it was established in 1980). The Department of Education articulated a three-part test to guide this inquiry and indicated that a school was in compliance with Title IX if it could meet any one of three following prongs:

Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or
Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

U.S. Dep’t of Educ., Intercollegiate Athletics Policy Clarification: The Three-Part Test—Part Three, Dear Colleague Letter 3 (Apr. 20, 2010). This test is essentially a codification of the First Circuit Court of Appeals opinion in Cohen v. Brown University, 991 F.2d 888, 897-898 (1st Cir. 1993). There, the court indicated that the first prong of the test furnishes “a safe harbor for those institutions that have distributed athletic opportunities in numbers ‘substantially proportionate’ to the gender composition of their student bodies.” Id. at 897. By maintaining proportionality between student body composition and athletic opportunities, these institutions are essentially exempted from further compliance analysis. Id. at 898. Of course, most institutions have yet to reach substantial proportionality. For these schools, the court wrote, the second and third prongs exist and “recognize that there are circumstances under which, as a practical matter, something short of this proportionality is a satisfactory proxy for gender balance.” Id. The second prong recognizes that “so long as a university is continually expanding athletic opportunities in an ongoing effort to meet the needs of the underrepresented gender…[Title IX is “satisfied” and] does not require that the university leap to complete gender parity in a single bound.” Id. Similarly, the third prong is met “if the underrepresented sex’s discernible interests are fully and effectively accommodated,” which means that “Title IX does not414 require that the school create teams for, or rain money upon, otherwise disinterested students.” Id.

In 2010, recognizing the practical importance of this third prong, the Department of Education’s Office for Civil Rights (OCR) clarified what it means to accommodate student interest. OCR posed three questions to determine whether student interests are being accommodated: (1) Is there unmet interest in a particular sport? (2) Is there sufficient ability to sustain a team in the sport? (3) Is there a reasonable expectation of competition for the team? U.S. Dep’t of Educ., Intercollegiate Athletics Policy Clarification, supra, at 4. If the answer to all three questions is yes, a violation exists. The first of these three questions, however, may be the most nebulous. For the first question of unmet interest, OCR examines a number of indicators, including

whether an institution uses nondiscriminatory methods of assessment when determining the athletic interests and abilities of its students; whether a viable team for the underrepresented sex recently was eliminated; multiple indicators of interest [(requests by students, participating in club and intramural sports, results of surveys, etc.)]; multiple indicators of ability [(athletic experiences and accomplishments, opinions of coaches, administrators, and athletes, participation in other sports demonstrating skills fundamental to the sport being considered, tryouts)]; and frequency of conducting assessments.

Id. at 4-8. OCR noted that “a properly designed and implemented survey is one tool that can assist an institution in capturing information on students’ interests and abilities,” although OCR “will not accept an institution’s reliance on a survey alone, regardless of the response rate, to determine whether it is fully and effectively accommodating the interests and abilities of its underrepresented students.” Id. at 8.

As to whether there is sufficient ability to sustain a team in a sport, the OCR evaluates factors comparing the minimum number of participants needed for a particular sport, considering skill sets and rates of substitutions and injuries, the size of teams at other schools, and the opinions of coaches concerning the abilities required to field an intercollegiate team. Id. at 12-13. As to the expectation of competition, OCR considers whether there are opportunities to compete against other schools with which the institution currently competes in these sports and whether other schools in the geographic area, which the institution does not currently compete, can provide competitive opportunities. Id. at 13.

Critics of Title IX’s sports provisions argue that since women are less interested in sports than men, there is no need to take steps to achieve equal opportunity. See, e.g., Ross A. Jurewitz, Playing at Even Strength: Reforming Title IX Enforcement in Intercollegiate Athletics, 8 Am. U. J. Gender Soc. Pol’y & L. 283, 332-333 (2000); Michael Straubel, Gender Equity, College Sports, Title IX and Group Rights: A Coach’s View, 62 Brook. L. Rev. 1039, 1041-1042 (1996). But as the court in the second appeal of Cohen v. Brown reasoned, women’s lower rate of participation in sports in not because of an inherent lack of interest; it is a result of the limited opportunities women have historically had to participate in athletics. Cohen v. Brown Univ., 101 F.3d 155, 178-179 (1st Cir. 1996). Some scholars go further, arguing that social conditioning devalues women athletes and discourages participation in sports. Thus, female interest is a false measure. 415 See, e.g., Nancy Levit & Robert R.M. Verchick, Feminist Legal Theory 114-115 (2006); Jocelyn Samuels, Reviewing the Play: How Faulty Premises Affected the Work of the Commission on Opportunity in Athletics and Why Title IX Protections Are Still Needed to Ensure Equal Opportunity in Athletics, 3 Margins 233, 242 (2003). Outside social forces intentionally stimulate interest in men, but not necessarily in women. Id.

OCR received extensive criticism for adopting the three-part test as described in Cohen v. Brown. Many argue that since the last two parts are so difficult to meet, the “substantially proportionate” prong has become a quota system, which restricts the ability of schools to establish nonrevenue building sports such as lacrosse, wrestling, or water polo since such schools would be required to establish both a women’s and a men’s team to comply with Title IX. See, e.g., Victoria Langton, Comment, Stop the Bleeding: Title IX and the Disappearance of Men’s Collegiate Athletic Teams, 12 Vanderbilt J. Ent. & Tech. L. 181 (2008). Others counter this premise, pointing out that (1) only a small percentage of colleges use the “substantially proportionate” measure; (2) support for sports other than football and basketball has increased over the years; (3) men’s sports still receive the vast majority of athletics funds; and (4) the unequal distribution of athletic funds across sports and the bloated budgets provided to football and basketball have just as large an impact on sports offerings as does Title IX concerns. See generally Nat’l Women’s L. Ctr., Title IX and Men’s “Minor” Sports: A False Conflict (July 15, 2008). Regardless, subsequent courts have rejected challenges to the three-part test. See, e.g., Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930 (D.C. Cir. 2004), cert. denied, 545 U.S. 1104 (2005); Kelley v. Bd. of Trs., Univ. of Ill., 1993 U.S. Dist. LEXIS 14272, aff’d, 35 F.3d 265 (7th Cir. 1994), cert. denied, 513 U.S. 1128 (1995).

PROBLEM

In 1999, the U.S. Department of Education found that the University of North Virginia was denying females equal athletic opportunities. The university responded that it would remedy the disparity within a reasonable period of time. A decade later, however, female participation in intercollegiate athletics at the University of North Virginia continued to be disproportionately lower than female undergraduate enrollment. Women comprised 44 percent of the student body, but they accounted for only 23.4 percent of the university’s intercollegiate athletes.

In 2010, the university was faced with a significant deficit in its athletic budget and determined that it would need to reduce athletic costs significantly. Determined to field only teams “capable of competing for championships,” the university concluded that it would have to discontinue some teams to eliminate its deficit. The university evaluated all 19 of its sports against seven criteria: (1) whether its conference or the NCAA sponsored a championship in the sport; (2) the tradition of success in the sport; (3) the level of interest and participation in the sport at the high school level; (4) the adequacy of the university’s facilities for the sport; (5) the level of spectator interest; (6) gender and ethnic issues; and416 (7) the cost of the sport. Based on these factors, the university discontinued four teams: men’s swimming, men’s fencing, and men’s and women’s diving. Men’s swimming was selected for termination because the program was historically weak, swimming is not widely offered in high schools, and it does not have a large fan base. The university did not eliminate women’s swimming because the school’s legal counsel advised that such action might lead to noncompliance with Title IX.

Members of the men’s swimming team are disappointed and have approached you to represent them. Advise them as to the viability of any legal claims they might assert.

H. PREGNANCY

Historically, most schools had policies that excluded women from school when they became pregnant or became mothers. While these schools may have eliminated the policies, pregnancy remains a common reason why young women drop out of school. Nat’l Women’s L. Ctr., How to Keep Pregnant and Parenting Students from Dropping Out: A Primer for Schools 1 (2007) (noting that “one-quarter to one-third of female dropouts say that pregnancy…played a role in their decision to leave school”). Only about half of women who become mothers during high school ultimately receive a high school diploma by age 22, whereas 90 percent of other female students will earn their diploma. Saul D. Hoffman, By the Numbers—The Public Costs of Teen Childbearing, National Campaign to Prevent Teen Pregnancy 14 (2006). Recognizing the unique educational challenges these young women face, Title IX regulations prohibit discrimination against pregnant students:

A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.

34 C.F.R. §106.40(b)(1) (2012). Although a school may require certification of the pregnancy, a Title IX recipient must treat pregnancy and related conditions as “any other temporary disability” and allow “a leave of absence for so long a period of time as is deemed medically necessary by the student’s physician.” Id. §106.40(b)(2)-(b)(5). These and other regulations are generally designed to achieve three goals: (1) preventing schools from excluding pregnant students from mainstream education programs and extracurricular activities; (2) ensuring pregnant students have a choice in whether to stay in the mainstream classroom or to attend alternative programs; and (3) delivering pregnant students educational opportunities that are comparable in quality to the education other students receive. See generally Kendra Fershee, Hollow Promises for Pregnant417 Students: How the Regulations Governing Title IX Fail to Protect Pregnancy Discrimination in Schools, 43 Ind. L. Rev. 79, 84-93 (2009).

Title IX makes clear that a school or activity cannot exclude students for becoming or being pregnant or a parent, but the extent to which they can punish students for sexual activity presents more complex issues. For instance, some school activities such as National Honor Society may include a “moral character” component, which officials might interpret premarital sex as violating. Pregnancy by an unmarried student amounts to per se evidence of premarital sex. The next two cases examine the question of whether enforcement of such policies constitutes discrimination on the basis of gender or whether they are legitimate attempts to regulate student behavior akin to any number of other discipline and character policies. Closely related is the question of whether the disparate impact alone of such policies amounts to a violation of Title IX or whether plaintiffs must establish that the policies are intentionally discriminatory.

Pfeiffer v. School Board for Marion Center Area

917 F.2d 779 (3d Cir. 1990)

The major question in this appeal is whether the district court erred in concluding that there was no violation of Title IX, when Arlene Pfeiffer was dismissed as a member of a high school chapter of the National Honor Society. The district court found that she was dismissed because of premarital sexual activity and not because of gender discrimination. [W]e hold that the finding was not clearly erroneous and accordingly affirm this determination of the court.

We are troubled, however, with an evidentiary ruling that excluded the testimony of a male student member of the school’s chapter of the National Honor Society. We remand, therefore, for the limited purpose of admitting the proffered testimony. We hold that this testimony has the potential of being relevant to whether there was discriminatory intent by members of the faculty council to dismiss Pfeiffer from the high school chapter.

The appellant, Arlene Pfeiffer, was a member of the class of 1984 at the Marion Center Area High School in Marion, Indiana County, Pennsylvania. [Based on her high grades, service as president of the student council, and other accolades,] she was elected to her high school’s chapter of the National Honor Society (NHS) in 1981. During the spring of 1983, Pfeiffer, who was unmarried, discovered that she was pregnant [and informed various guidance counselors and the principal]. Principal Stewart told her that he saw no problem in her plan to continue school and graduate.

The handbook for the National Honor Society requires that students be selected for membership on the basis of scholarship, service, leadership and character. The high school had a selection procedure which followed the national organization’s instructions, in which these qualities were assessed by418 teachers. To be admitted into the NHS, a student was rated by at least five teachers. In the instructions under the heading “Leadership” one of the qualities to be assessed was whether the student exerted the type of leadership which directly influences others for good conduct. Another quality to be assessed under the heading “Character” was whether the student upholds principles of morality and ethics.

[On learning of Pfeiffer’s pregnancy, the faculty council for NHS scheduled a meeting in the fall of 1983. At the meeting, “council members explained to her that her NHS membership was in question because premarital sex appeared to be contrary to the qualities of leadership and character essential for membership,” but the council took no immediate action against her. In a second meeting prompted by a request from Pfeiffer’s father, the council, by secret ballot, voted unanimously to dismiss her from the NHS. The stated basis was Pfeiffer’s “[f]ailure to uphold the high standards of leadership and character required for admission and maintenance of membership. It is the opinion of the faculty council that a member must consistently set a positive example for others and, as outlined in the selection guidelines, always uphold all of the high standards of moral conduct.” Pfeiffer’s parents then appealed the council’s determination to the school board. After a public meeting with the parents and their counsel, the board unanimously affirmed Pfeiffer’s dismissal from NHS.]

After graduation from high school, with honors, Pfeiffer elected not to go to college and began working with the Holiday Inn of Indiana, where she is presently a sales manager. She is married, but not to the father of the child conceived while she was in school.

During a bench trial, the court heard testimony that the school district keeps no records of a student’s extracurricular activities and that there are no records therefore concerning Pfeiffer’s induction or absence thereof, or of her membership in the NHS. The NHS no longer exists at Marion Center Area High School and the national organization is no longer a party to this suit.

Testimony was presented that a pregnant female student had resigned from the NHS chapter after an admission of engaging in premarital sex 10 to 12 years earlier. She apparently had been given the choice of resignation or dismissal by the faculty council. No male member of the chapter has ever been dismissed for premarital sexual activity. The appellant offered to introduce testimony by a former student who was a male member of the chapter, that two years after Pfeiffer’s dismissal, while a senior at the high school he impregnated his girlfriend and that he was not dismissed from the chapter. The district court excluded the evidence.

After considering the admitted evidence, the district court made a factual finding that the plaintiff was not dismissed for her pregnancy but because the faculty council concluded that she had failed to uphold the standards of the National Honor Society by engaging in premarital sexual intercourse.

419

Title IX of the Education Amendment of 1972 provides, in part, as follows: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. §1681(a). Regulations promulgated pursuant to Title IX specifically apply its prohibition against gender discrimination to discrimination on the basis of pregnancy, parental status, and marital status. Pursuant to 34 C.F.R. §106.40 (1980), “A recipient shall not apply any rule concerning a student’s actual or potential parental, family, or marital status which treats students differently on the basis of sex.…A recipient shall not discriminate against any student or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.”

The district court held that the faculty council and the school board did not violate Title IX or the regulations because the plaintiff was not dismissed from the NHS because of her pregnancy but because the faculty council considered premarital sex as setting an example inconsistent with the objectives and standards of the Honor Society.

In Wort v. Vierling, No. 82-3169, slip op. (C.D. Ill. Sept. 4, 1984), the court held that a school district’s dismissal of a pregnant student from the National Honor Society was a violation both of Title IX and the equal protection clause of the fourteenth amendment. In Wort, the court concluded that “[p]laintiff was dismissed from the NHS because of her pregnancy or the acts leading up to her pregnancy.”

In reaching that decision, the court in Wort declined to distinguish the sexual conduct from the resulting pregnancy. But the district court here did make this distinction. It specifically found that Pfeiffer was dismissed not because she was pregnant but because she had engaged in premarital sexual activity. This is an important distinction between the two cases. Regulation of conduct of unmarried high school student members is within the realm of authority of the National Honor Society given its emphasis on leadership and character.

In any event, the appellant’s entire argument before us rests upon her allegation that she was dismissed from the chapter because of her condition of pregnancy. Unfortunately for her theory, however, the district court found that “[t]he plaintiff was not dismissed for her pregnancy but because the council thought she had failed to uphold the standards [of the NHS].” As a finding of fact, this holding may not be disturbed unless clearly erroneous. We do not believe that it is erroneous. Supporting this finding is the stated reason given by the council for her dismissal: Failure to uphold the standards of leadership and character required for admission and maintenance of membership. Moreover,420 the finding is supported by the testimony of the faculty council members before the district court, each of whom testified at trial. Each faculty council member specifically denied that his or her dismissal vote was based anywhere on Pfeiffer’s sex, on her pregnancy, or on her failure to marry after she had engaged in premarital sexual activity.

This factual finding is bolstered by the district court’s reasoning that “[f]aced with the task of educating hundreds of young people, and with constant demand by the public that the schools instill attributes of good character as part of the educational process, the Council and the Board can scarcely be criticized for taking the action which was taken.”

Indeed, the Supreme Court has given us express guidance in matters relating to student conduct in public schools: “The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers—and indeed the older students—demonstrate the appropriate form of…conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct.…” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986).

VII

More difficult, however, is appellant’s contention that the district court abused its discretion in excluding the proffered testimony of a former student, a male member of the Marion Center Area High School chapter of the NHS. At trial, [plaintiff’s counsel attempted to introduce testimony by a former student that he had engaged in premarital sex, which some members of the school would have been aware of based on his fiancée’s pregnancy. Plaintiff’s counsel also proffered evidence regarding another male high school student was commonly known to have engaged in premarital sex and that the council had not taken action against either of these males.]

We find this evidence can possibly be relevant to the state of mind of the faculty council [regarding Pfeiffer], and whether the council and the board’s explanation for their actions was pretextual when they dismissed Pfeiffer. The proffered testimony is relevant to the issue of intentional discrimination. We, therefore, disagree with the district court’s exclusion of it on the grounds that the events in the proffer post-dated by some years the [action against Pfeiffer]. [W]e believe that the evidence has the potential of being relevant to whether the council members followed a double standard in evaluating premarital sexual activities of NHS chapter members. Under these circumstances, to exclude it was not consistent with sound exercise of discretion.

However, in directing that this testimony be considered, we are not saying that the proffer was sufficient. For example, all the proffer said was that the male student “had informed his teacher and other members of the Marion Center community that he was the father and that he had got married because his421 [fiancée] had gotten pregnant.” There is nothing in the proffer declaring that any member of the council had any knowledge of this situation.

What is important to the ultimate determination is what information was communicated to the council members. Lacking such communication, the testimony may not even be relevant. Moreover, even if the district court finds that the council did know of the male student’s premarital sexual activity and did nothing about it, this by itself does not require the district court to make automatic findings one way or another. By remanding, we only instruct the district court to consider the proffered testimony for what it may be worth.

VIII

[The Court notes that the Supreme Court has not decided whether intent is a necessary element for a claim under Title IX, but notes that “we need not meet this problem because the gravamen of Pfeiffer’s complaint is that she was intentionally discriminated against in violation of Title IX and its implementing regulations. This is, therefore, not a case of discriminatory effect, but one of discriminatory intention. We find it sufficient to allow a remedy of compensatory damages when a plaintiff alleges and then establishes discriminatory intent.”]

The judgment of the district court will be affirmed in part and vacated and remanded in part.

The court in Chipman v. Grant County School District takes a different approach from Pfeiffer and is skeptical of whether premarital sex can realistically be distinguished from pregnancy given the way in which schools typically enforce the policy. Questions and comments regarding both Pfeiffer and Chipman follow the Chipman excerpt. Compare the differing approaches as you read Chipman.

Chipman v. Grant County School District

30 F. Supp. 2d 975 (E.D. Ky. 1998)

Title IX regulation[s] unequivocally prohibit[t] pregnancy discrimination by the defendants. Although its language is somewhat different, its purpose is generally the same as the Pregnancy Discrimination Act. Therefore, the court believes precedents under the Pregnancy Discrimination Act are applicable here.

Use of a disparate impact theory for proving discrimination is well recognized in pregnancy cases. It has long been recognized that the anti-discrimination laws prohibit “both overt discrimination, as well as practices that are fair in form but discriminatory in operation.” The plaintiff’s burden in a disparate impact case “is to prove that a particular…practice has caused a significant422 adverse effect on a protected group. Once the plaintiff establishes the adverse effect, the burden shifts to the [defendant] to produce evidence that the challenged practice is a…necessity.”

When a disparate impact analysis is applied to the evidence now of record in the instant case, the balance tips decidedly in favor of the plaintiffs. The plaintiffs have met their burden of proving that the challenged practices of the defendants in screening students for admission to the NHS has caused a significant adverse effect on the protected group, i.e., young women who have become pregnant from premarital sex and have become visibly pregnant. Statistically, 100% of such young women are not admitted to the [Grant County National Honor Society (GCNHS)]. Although the defendants argue that they are not basing their decision on pregnancy, but rather on non-marital sexual relations, the disparate impact on young women such as the plaintiffs is apparent.

Although 100% of young women who are visibly pregnant or who have had a child out of wedlock are denied membership, as far as the record reflects, defendants’ policy excludes 0% of young men who have had premarital sexual relations and 0% of young women who have had such relations but have not become pregnant or have elected to have an early abortion.

The defendants claim that they would also exclude such students from the NHS membership but none have ever come to their attention. It may be that the discriminatory impact resulting from this policy is unintentional but proof of intentional discrimination is not required under a disparate impact theory.

The plaintiffs having met their initial burden of showing the significant adverse impact of defendants’ policy, the burden now shifts to the defendants to show that the challenged practice is a reasonable necessity. The defendants have not met such burden on the record now before the court. There are many alternate means to assess the character of candidates for membership in the NHS by non-discriminatory criteria. Therefore the court holds that plaintiffs’ probability of success herein is very high using a disparate impact theory.

NOTES AND QUESTIONS

1. Is “premarital sex contrary to the qualities of leadership and character essential for membership” in the National Honor Society? Is premarital sex an indication of a failure to “uphold high standards of moral conduct”? Is punishing students for premarital sex a form of discrimination based on marital status? If so, would that place the issue of voluntary sexual behavior beyond the purview of school regulation?

2. As discussed in Pfeiffer and Chipman, courts endeavor to determine whether the exclusion of a pregnant student is gender-based discrimination under the Equal Protection Clause and pregnancy discrimination under Title IX, or is based on prohibitions on premarital sex. Further, there is an inconsistency among courts over whether plaintiffs can prove Title IX pregnancy discrimination under a disparate impact theory. Pfeiffer required proof of intent, while Chipman held that disparate impact was sufficient, relying on authority423 from two other courts. But see Hall v. Lee Coll., 932 F. Supp. 1027, 1031-1033 (E.D. Tenn. 1996) (refusing to examine Title IX’s pregnancy regulations to evaluate the suspension of a pregnant student for premarital sex, arguing that the policy was gender neutral). The Supreme Court has not resolved this split of opinion. See generally Michelle Gough, Parenting and Pregnant Students: An Evaluation of the Implementation of the “Other” Title IX, 17 Mich. J. Gender & L. 211, 229-234, 248 (2011). Which court’s rationale is most compelling? Given the real difference between the sexes in regard to pregnancy and its obvious connection to sex, are distinctions between punishment for pregnancy and premarital sex reliable, or do they just invite biased enforcement? If a school cannot punish students for premarital pregnancy, why should it be able to punish them for premarital sex?

3. Is it possible that some differential treatment of students for premarital sex is a result of lax enforcement and/or a certain level of respect for student privacy as opposed to gender discrimination? A school might want to prohibit premarital sex as a general principle while at the same time having little interest in seeking it out. Nonetheless, when the school is presented with an obvious infraction based on pregnancy, the school might believe it must either abandon its position or enforce the rule against the pregnant student. Is there any other choice? Is enforcing the rule discrimination? Even if discrimination is not necessarily involved, is it likely enough as a general principle to follow the rationale in Chipman?

4. One scholar argues that the Title IX pregnancy regulations are insufficient to effectively prevent pregnancy discrimination:

First, they have no specific mandates requiring schools to report the numbers of pregnant students who drop out of school, choose to attend alternative schools, or what academic requirements are in place for pregnant students at alternative schools. Second, they do not provide adequate enforcement mechanisms to catch violations of the Regulations and Title IX when they occur. Third, they do not require routine reviews of Recipients. Fourth, the provision requiring that any alternative education available to pregnant students must be comparable to that available to non-pregnant students fails to include specific strictures to ensure that pregnant students are not receiving inferior opportunities. Fifth, the Regulations lack directives for school administrators in the role of advising pregnant students about their options and rights under Title IX.

Kendra Fershee, Hollow Promises for Pregnant Students: How the Regulations Governing Title IX Fail to Protect Pregnancy Discrimination in Schools, 43 Ind. L. Rev. 79, 94 (2009). Most important, there is some ambiguity over whether the Title IX pregnancy regulations provide a private cause of action, particularly under disparate impact theories post-Sandoval. See generally id.

5. In response to high dropout rates among pregnant teens and mothers, many communities have established alternative schools and supplemental programs to assist pregnant students in continuing their education. See generally Tamara S. Ling, Comment, Lifting Voices: Towards Equal Education for Pregnant and Parenting Students in New York City, 29 Fordham Urb. L.J. 2387, 2400-2407 (2002); Monica J. Stamm, Note, A Skeleton in the Closet: Single-Sex Schools for Pregnant Girls, 98 Colum. L. Rev. 1203 (1998). Title IX demands that alternative424 programs be voluntary, requires that students be told of the educational options available in both mainstream classes and alternative programs, and prohibits advising the student to transfer to a pregnancy school. See Wendy C. Wolf, Ctr. for Assessment & Pol’y Dev., Using Title IX to Protect the Rights of Pregnant and Parenting Teens (1999). Some argue that these special programs are necessary, while others argue that mainstream programs need to be more accommodating of the needs of pregnant and parenting students. See generally Ling, supra at 2407-2408.

6. What kind of accommodations should schools be required to provide to their pregnant and parenting students? Some courts have required significant accommodations, including the provision of childcare and reasonable accommodations for course and exam schedules. See, e.g., De La Cruz v. Tormey, 582 F.2d 45 (9th Cir. 1978) (childcare facilities); Hogan v. Ogden, No. Cu-06-5078 EFS, 2008 WL 2954245 (E.D. Wash. July 30, 2008) (exam schedule alteration). Requiring schools to respond to pregnant and parenting students’ needs, however, does not mean schools lack discretion in how they meet those needs. It may be enough that a school provides students viable options, even if the options are not the ones a student would prefer. See, e.g., Darian v. Univ. of Mass., Boston, 980 F. Supp. 77 (D. Mass. 1997) (finding no violation where the school offered “an array of remedial measures” to reasonably accommodate the student); see also Ivan v. Kent State Univ., 863 F. Supp. 581, 583 (N.D. Ohio 1994) (finding that pregnant student was treated differently because of her poor performance, not gender or pregnancy).

7. An important issue is the extent of privacy protections for pregnant students. Are schools allowed to provide, administer, or require pregnancy tests? See Gruenke v. Seip, 225 F.3d 290, 295 (3d Cir. 2000) (requiring a pregnancy test is an unreasonable seizure under the Fourth Amendment); Villaneuva v. San Marco Consol. Ind. Sch. Dist., No. A-05-CA-455LY, 2006 WL 2591082, at *8 (W.D. Tex. Sept. 7, 2006) (same). If, however, a school becomes aware of a student’s pregnancy, lower courts have upheld schools’ discretion to notify the student’s parents and other administrators. See Port Wash. Teacher’s Ass’n v. Bd. of Educ. of the Port Wash. Union Free Sch. Dist., 361 F. Supp. 2d 69 (E.D.N.Y. 2005); Holt v. Super. Ct., No. B157647, 2002 WL 1399106 (2d Cir. June 28, 2002).

8. Equal protection jurisprudence asks whether “similarly situated” individuals have been treated differently. The problem with pregnancy-related issues is that males and females are not similarly situated. Thus, some argue that males and females should not be treated as such for equal protection purposes. In Kicklighter v. Evans County School District, 968 F. Supp. 712 (S.D. Ga. 1997), aff’d, 140 F.3d 1043 (11th Cir. 1998), a case where the plaintiff did not make a Title IX claim, a student alleged that she was suspended for becoming pregnant with a man of a different race, but the school argued that she was suspended for disrupting class. 968 F. Supp. at 714, 720. The court rejected her claim, reasoning that she had not been treated differently from other pregnant students, who were the similarly situated persons to whom she should be compared. Id. at 720; see also Kendra Fershee, An Act for All Contexts: Incorporating the Pregnancy Discrimination Act into Title IX to Help Pregnant Students Gain and425 Retain Access to Education, 39 Hofstra L. Rev. 281, 313 (2010) (arguing that the “court’s narrow construction of who is similarly situated essentially makes it impossible that a pregnant student could win a claim for pregnancy discrimination, unless there were other pregnant students in the school who also had discipline problems” but had been treated differently).

I. SEXUAL HARASSMENT

In a 1986 employment case, the Supreme Court held that sexual harassment is a form of discrimination “based on sex.” Meritor Sav. Bank F.S.B. v. Vinson, 477 U.S. 57 (1986). The Court reasoned:

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.

Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 902 (1982)). Six years later, the Supreme Court extended this reasoning to Title IX in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75 (1992). Title IX placed the duty on the Gwinnett County Public Schools not to discriminate on the basis of sex, and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.” Id. at 75 (quoting Meritor Sav. Bank, 477 U.S. at 64). While Franklin recognized that sexual harassment could be gender discrimination within the meaning of Title IX, the case did not define the contours of prohibited sexual harassment. Questions quickly arose as to whether a school’s liability is dependent on who the harasser is and on whether any particular level of severity is required for the harassment to be actionable. The Court answered the first of these questions in Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998).

In Gebser, a teacher had sexually harassed a student, but the Court indicated that a school is not automatically liable under Title IX for all sexual harassment that occurs at school or by its employees. The Court distinguished between schools’ agents (such as their administrators and officials) and their employees (teachers and staff). To be liable for the sexual harassment of an employee under Title IX, the Court held that “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures” must have “actual knowledge of discrimination…and fail[] adequately to respond.” Id. at 276. The Court labeled this inadequate response as “deliberate indifference to discrimination.” Id. The Court reasoned that liability was appropriate when a school is deliberately indifferent to harassment because the school is not being held liable for someone else’s action but for its own official decision not to remedy the discrimination. When harassment by nonagents occurs on campus426 and the school is unaware of it, the Court reasoned that the school itself has not engaged in any type of prohibited activity for which it ought to be liable under Title IX.

This holding strikes those familiar with employment law as odd given that employers are generally liable for the torts of their employees under principles of vicarious liability. The Court’s holding in Gebser did not affect schools’ vicariously liability under state tort law. The Court simply refused to import those same concepts into Title IX, finding vicarious liability incompatible with the statute’s intent and text.

The following year in Davis v. Monroe County Board of Education the Court took up the question of whether a school might also be liable for student-on-student sexual harassment. The Court was willing to accept the notion that some student-on-student sexual harassment can give rise to a cause of action. If a school is deliberately indifferent to sexual harassment, it theoretically makes little difference whether it is harassment by students or teachers. However, the Court recognized that students, due to their immaturity, frequently mistreat one another, and distinguishing sexual harassment from adolescent misbehavior is key. As you read Davis, consider whether the Court was correct to extend its concept of deliberate indifference to student-on-student sexual harassment, whether the Court drew the appropriate line between harassment and misbehavior, and whether its standard can be reliably applied.

Davis v. Monroe County Board of Education

526 U.S. 629 (1999)

Justice O’Connor delivered the opinion of the Court.

Petitioner brought suit against the Monroe County Board of Education and other defendants, alleging that her fifth grade daughter had been the victim of sexual harassment by another student. We consider here whether a private damages action may lie against the school board in cases of student-on-student harassment. We conclude that it may, but only where the funding recipient acts with deliberate indifference to known acts of harassment in its programs or activities. Moreover, we conclude that such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.

Petitioner’s minor daughter, LaShonda, was allegedly the victim of a prolonged pattern of sexual harassment by one of her fifth-grade classmates at Hubbard Elementary School, a public school in Monroe County, Georgia. According to petitioner’s complaint, the harassment began in December 1992, when the classmate, G.F., attempted to touch LaShonda’s breasts and genital area and made vulgar statements such as “‘I want to get in bed with you’” and “‘I want to feel your boobs.’” Similar conduct allegedly occurred on or about January 4 and January 20, 1993. LaShonda [and her mother] reported each of these427 incidents to her classroom teacher, Diane Fort[, who] allegedly assured petitioner that the school principal had been informed. Petitioner contends that, notwithstanding these reports, no disciplinary action was taken against G.F.

G.F.’s conduct allegedly continued for many months [and included conduct such as rubbing his body against LaShonda in a sexually suggestive manner, all of which LaShonda and her mother allegedly reported to teachers]. The string of incidents finally ended in mid-May, when G.F. was charged with, and pleaded guilty to, sexual battery for his misconduct. The complaint alleges that LaShonda had suffered during the months of harassment; specifically, her previously high grades allegedly dropped as she became unable to concentrate on her studies, and, in April 1993, her father discovered that she had written a suicide note. The complaint further alleges that, at one point, LaShonda told petitioner that she “‘didn’t know how much longer she could keep [G.F.] off her.’”

Nor was LaShonda G.F.’s only victim; it is alleged that other girls in the class fell prey to G.F.’s conduct. When petitioner inquired [in May of 1993] as to what action the school intended to take against G.F., [the principal] simply stated, “I guess I’ll have to threaten him a little bit harder.” Yet, petitioner alleges, at no point during the many months of his reported misconduct was G.F. disciplined for harassment. Id. Indeed, [the principal] allegedly asked petitioner why LaShonda “was the only one complaining.”

Nor, according to the complaint, was any effort made to separate G.F. and LaShonda. On the contrary, only after more than three months of reported harassment was she even permitted to change her classroom seat so that she was no longer seated next to G.F. Moreover, petitioner alleges that, at the time of the events in question, the Monroe County Board of Education (Board) had not instructed its personnel on how to respond to peer sexual harassment and had not established a policy on the issue.

[A]t issue here is the question whether a recipient of federal education funding may be liable for damages under Title IX under any circumstances for discrimination in the form of student-on-student sexual harassment.

Petitioner emphasizes that the statute prohibits a student from being “subjected to discrimination under any education program or activity receiving Federal financial assistance.” It is Title IX’s “unmistakable focus on the benefited class,” Cannon v. Univ. of Chicago, 441 U.S. 677, 691 (1979), rather than the perpetrator, that, in petitioner’s view, compels the conclusion that the statute works to protect students from the discriminatory misconduct of their peers.

Here, however, we are asked to do more than define the scope of the behavior that Title IX proscribes. We must determine whether a district’s failure to respond to student-on-student harassment can support a private suit for money damages. This Court has indeed recognized an implied private right of action under Title IX, see Cannon v. Univ. of Chicago, and we have held that money428 damages are available, Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60 (1992). Because we have repeatedly treated Title IX as legislation enacted pursuant to Congress’ authority under the Spending Clause, however, private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.

Respondents contend that the statute only proscribes misconduct by grant recipients, not third parties. Respondents argue, moreover, that it would be contrary to the very purpose of Spending Clause legislation to impose liability on a funding recipient for the misconduct of third parties, over whom recipients exercise little control.

We agree with respondents that a recipient of federal funds may be liable in damages under Title IX only for its own misconduct. The recipient itself must “exclud[e] [persons] from participation in,…den[y][persons] the benefits of, or…subjec[t] [persons] to discrimination under” its “program[s] or activit[ies]” in order to be liable under Title IX. The Government’s enforcement power may only be exercised against the funding recipient, and we have not extended damages liability under Title IX to parties outside the scope of this power.

We disagree with respondents’ assertion, however, that petitioner seeks to hold the Board liable for G.F.’s actions instead of its own. Here, petitioner attempts to hold the Board liable for its own decision to remain idle in the face of known student-on-student harassment in its schools. In Gebser v. Lago Vista Indep. Sch. Dist., we concluded that a recipient of federal education funds may be liable in damages under Title IX where it is deliberately indifferent to known acts of sexual harassment by a teacher. [Our holding in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), requires that the funding recipients have notice of their potential liability for damages, but Guardians Association v. Civil Service Commission of New York City establishes that the general requirement of notice does not act as a bar of liability where the funding recipient intentionally violates the terms of Title IX.]

Gebser thus established that a recipient intentionally violates Title IX, and is subject to a private damages action, where the recipient is deliberately indifferent to known acts of teacher-student discrimination. Indeed, whether viewed as “discriminat[ing]” or “subject[ing]” students to discrimination, Title IX “[u]nquestionably…placed on [the Board] the duty not” to permit teacher-student harassment in its schools, Franklin v. Gwinnett Cnty. Pub. Sch., and recipients violate Title IX’s plain terms when they remain deliberately indifferent to this form of misconduct.

We consider here whether the misconduct identified in Gebser—deliberate indifference to known acts of harassment—amounts to an intentional violation of Title IX, capable of supporting a private damages action, when the harasser is a student rather than a teacher. We conclude that, in certain limited circumstances, it does. As an initial matter, in Gebser we expressly rejected the use of agency principles in the Title IX context, noting the textual differences between Title IX and Title VII. Additionally, the regulatory scheme surrounding Title IX has long provided funding recipients with notice that they may be liable for their failure to respond to the discriminatory acts of certain nonagents. The429 Department of Education requires recipients to monitor third parties for discrimination in specified circumstances and to refrain from particular forms of interaction with outside entities that are known to discriminate. See, e.g., 34 C.F.R. §§106.31(b)(6), 106.31(d), 106.37(a)(2), 106.38(a), 106.51(a)(3) (1998). The common law, too, has put schools on notice that they may be held responsible under state law for their failure to protect students from the tortious acts of third parties. In fact, state courts routinely uphold claims alleging that schools have been negligent in failing to protect their students from the torts of their peers.

This is not to say that the identity of the harasser is irrelevant. On the contrary, both the “deliberate indifference” standard and the language of Title IX narrowly circumscribe the set of parties whose known acts of sexual harassment can trigger some duty to respond on the part of funding recipients. Deliberate indifference makes sense as a theory of direct liability under Title IX only where the funding recipient has some control over the alleged harassment. A recipient cannot be directly liable for its indifference where it lacks the authority to take remedial action.

The language of Title IX itself—particularly when viewed in conjunction with the requirement that the recipient have notice of Title IX’s prohibitions to be liable for damages—also cabins the range of misconduct that the statute proscribes. The statute’s plain language confines the scope of prohibited conduct based on the recipient’s degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference “subject[s]” its students to harassment. That is, the deliberate indifference must, at a minimum, “cause [students] to undergo” harassment or “make them liable or vulnerable” to it. Random House Dictionary of the English Language 1415 (1966) (defining “subject” as “to cause to undergo the action of something specified; expose” or “to make liable or vulnerable; lay open; expose”). Moreover, because the harassment must occur “under” “the operations of” a funding recipient, the harassment must take place in a context subject to the school district’s control.

These factors combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to “expose” its students to harassment or “cause” them to undergo it “under” the recipient’s programs. We agree with the dissent that these conditions are satisfied most easily and most obviously when the offender is an agent of the recipient. We, however, disagree that the term “under” somehow imports an agency requirement into Title IX. As noted above, the theory in Gebser was that the recipient was directly liable for its deliberate indifference to discrimination. Liability in that case did not arise because the “teacher’s actions [were] treated” as those of the funding recipient; the district was directly liable for its own failure to act.

Where, as here, the misconduct occurs during school hours and on school grounds—the bulk of G.F.’s misconduct, in fact, took place in the classroom—the misconduct is taking place “under” an “operation” of the funding recipient. In these circumstances, the recipient retains substantial control over the context in which the harassment occurs. More importantly, however, in this setting the Board exercises significant control over the harasser. We thus conclude that430 recipients of federal funding may be liable for “subject[ing]” their students to discrimination where the recipient is deliberately indifferent to known acts of student-on-student sexual harassment and the harasser is under the school’s disciplinary authority.

At the time of the events in question here, in fact, school attorneys and administrators were being told that student-on-student harassment could trigger liability under Title IX. [The National School Boards Association released a publication in March 1993, “even as the events alleged in petitioner’s complaint were unfolding,” which observed that districts could be liable under Title IX for their failure to respond to student-on-student harassment. The OCR also recently adopted policy guidelines providing that student-on-student harassment falls within the scope of Title IX’s proscriptions.]

We stress that our conclusion here—that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment—does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action. We thus disagree with respondents’ contention that, if Title IX provides a cause of action for student-on-student harassment, “nothing short of expulsion of every student accused of misconduct involving sexual overtones would protect school systems from liability or damages.” Likewise, the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands. In fact, as we have previously noted, courts should refrain from second-guessing the disciplinary decisions made by school administrators.

School administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed “deliberately indifferent” to acts of student-on-student harassment only where the recipient’s response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances. We believe that the standard set out here is sufficiently flexible to account both for the level of disciplinary authority available to the school and for the potential liability arising from certain forms of disciplinary action. A university might not, for example, be expected to exercise the same degree of control over its students that a grade school would enjoy and it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.

While it remains to be seen whether petitioner can show that the Board’s response to reports of G.F.’s misconduct was clearly unreasonable in light of the known circumstances, petitioner may be able to show that the Board “subject[ed]” LaShonda to discrimination by failing to respond in any way over a period of five months to complaints of G.F.’s in-school misconduct from LaShonda and other female students.

The requirement that recipients receive adequate notice of Title IX’s proscriptions also bears on the proper definition of “discrimination” in the context of a private damages action. We have elsewhere concluded that sexual431 harassment is a form of discrimination for Title IX purposes and that Title IX proscribes harassment with sufficient clarity to satisfy Pennhurst’s notice requirement and serve as a basis for a damages action. Having previously determined that “sexual harassment” is “discrimination” in the school context under Title IX, we are constrained to conclude that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of discrimination actionable under the statute. The statute’s other prohibitions, moreover, help give content to the term “discrimination” in this context. Students are not only protected from discrimination, but also specifically shielded from being “excluded from participation in” or “denied the benefits of” any “education program or activity receiving Federal financial assistance.”§1681(a). The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender. We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.

The most obvious example of student-on-student sexual harassment capable of triggering a damages claim would thus involve the overt, physical deprivation of access to school resources. Consider, for example, a case in which male students physically threaten their female peers every day, successfully preventing the female students from using a particular school resource—an athletic field or a computer lab, for instance. District administrators are well aware of the daily ritual, yet they deliberately ignore requests for aid from the female students wishing to use the resource. The district’s knowing refusal to take any action in response to such behavior would fly in the face of Title IX’s core principles, and such deliberate indifference may appropriately be subject to claims for monetary damages. It is not necessary, however, to show physical exclusion to demonstrate that students have been deprived by the actions of another student or students of an educational opportunity on the basis of sex. Rather, a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.

Whether gender-oriented conduct rises to the level of actionable “harassment” thus “depends on a constellation of surrounding circumstances, expectations, and relationships,” including, but not limited to, the ages of the harasser and the victim and the number of individuals involved, see OCR Title IX Guidelines 12041-12042. Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. Indeed, at least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment,432 damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.

Moreover, the provision that the discrimination occur “under any education program or activity” suggests that the behavior be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity. Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment. By limiting private damages actions to cases having a systemic effect on educational programs or activities, we reconcile the general principle that Title IX prohibits official indifference to known peer sexual harassment with the practical realities of responding to student behavior, realities that Congress could not have meant to be ignored.

The fact that it was a teacher who engaged in harassment in Franklin and Gebser is relevant. The relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX’s guarantee of equal access to educational benefits and to have a systemic effect on a program or activity. Peer harassment, in particular, is less likely to satisfy these requirements than is teacher-student harassment.

Applying this standard to the facts at issue here, we conclude that the Eleventh Circuit erred in dismissing petitioner’s complaint. Petitioner alleges that her daughter was the victim of repeated acts of sexual harassment by G.F. over a 5-month period, and there are allegations in support of the conclusion that G.F.’s misconduct was severe, pervasive, and objectively offensive. The harassment was not only verbal; it included numerous acts of objectively offensive touching, and, indeed, G.F. ultimately pleaded guilty to criminal sexual misconduct. Moreover, the complaint alleges that there were multiple victims who were sufficiently disturbed by G.F.’s misconduct to seek an audience with the school principal. Further, petitioner contends that the harassment had a concrete, negative effect on her daughter’s ability to receive an education. The complaint also suggests that petitioner may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort whatsoever either to investigate or to put an end to the harassment.

Accordingly, the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justice Kennedy, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.

Title IX gives schools neither notice that the conduct the majority labels peer “sexual harassment” is gender discrimination within the meaning of the433 Act nor any guidance in distinguishing in individual cases between actionable discrimination and the immature behavior of children and adolescents. The majority thus imposes on schools potentially crushing financial liability for student conduct that is not prohibited in clear terms by Title IX and that cannot, even after today’s opinion, be identified by either schools or courts with any precision.

The law recognizes that children—particularly young children—are not fully accountable for their actions because they lack the capacity to exercise mature judgment. No one contests that much of this “dizzying array of immature or uncontrollable behaviors by students,” is inappropriate, even “objectively offensive” at times, and that parents and schools have a moral and ethical responsibility to help students learn to interact with their peers in an appropriate manner. It is a far different question, however, whether it is either proper or useful to label this immature, childish behavior gender discrimination. Nothing in Title IX suggests that Congress even contemplated this question, much less answered it in the affirmative in unambiguous terms.

The majority, nevertheless, has no problem labeling the conduct of fifth graders “sexual harassment” and “gender discrimination.” Contrary to the majority’s assertion, however, respondents have made a cogent and persuasive argument that the type of student conduct alleged by petitioner should not be considered “sexual harassment,” much less gender discrimination actionable under Title IX: “[A]t the time Petitioner filed her complaint, no court, including this Court had recognized the concept of sexual harassment in any context other than the employment context. Nor had any Court extended the concept of sexual harassment to the misconduct of emotionally and socially immature children. The type of conduct alleged by Petitioner in her complaint is not new. However, in past years it was properly identified as misconduct which was addressed within the context of student discipline. The Petitioner now asks this Court to create out of whole cloth a cause of action by labeling childish misconduct as ‘sexual harassment,’ to stigmatize children as sexual harassers, and have the federal court system take on the additional burden of second guessing the disciplinary actions taken by school administrators in addressing misconduct, something this Court has consistently refused to do.” Brief for Respondents 12-13 (citation omitted).

In reality, there is no established body of federal or state law on which courts may draw in defining the student conduct that qualifies as Title IX gender discrimination. Analogies to Title VII hostile environment harassment are inapposite, because schools are not workplaces and children are not adults. The norms of the adult workplace that have defined hostile environment sexual harassment are not easily translated to peer relationships in schools, where teenage romantic relationships and dating are a part of everyday life. Analogies to Title IX teacher sexual harassment of students are similarly flawed. A teacher’s sexual overtures toward a student are always inappropriate; a teenager’s romantic overtures to a classmate (even when persistent and unwelcome) are an inescapable part of adolescence.

The only guidance the majority gives schools in distinguishing between the “simple acts of teasing and name calling among school children,” said not to be a434 basis for suit even when they “target differences in gender,” and actionable peer sexual harassment is, in reality, no guidance at all. The majority proclaims that “in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.” The majority does not even purport to explain, however, what constitutes an actionable denial of “equal access to education.” Is equal access denied when a girl who tires of being chased by the boys at recess refuses to go outside? When she cannot concentrate during class because she is worried about the recess activities? When she pretends to be sick one day so she can stay home from school? It appears the majority is content to let juries decide.

The majority’s reference to a “systemic effect” does nothing to clarify the content of its standard. The majority appears to intend that requirement to do no more than exclude the possibility that a single act of harassment perpetrated by one student on one other student can form the basis for an actionable claim. That is a small concession indeed.

NOTES AND QUESTIONS

1. A claim of student-on-student sexual harassment is actionable under Title IX if (1) the sexual harassment was so severe, pervasive, and objectively offensive that it deprived the student access to the educational benefits or opportunities provided by the school; (2) the educational institution had actual knowledge of the sexual harassment; and (3) the funding recipient was deliberately indifferent to the harassment. How does the Davis court define and provide substance to these prongs?

2. Sexual harassment is prevalent in American middle and high schools and disparately affects women students. A 2011 survey found that 48 percent of students experienced some form of sexual harassment, and 87 percent said that the harassment had a negative effect on them. See generally Catherine Hill & Holly Kearl, Am. Ass’n of Univ. Women, Crossing the Line: Sexual Harassment at School (2011). Girls are more likely to be sexually harassed than boys (56 percent versus 40 percent), both in person (52 percent versus 35 percent) and through electronic communications and text messaging (36 percent versus 24 percent). Id.

3. Recognizing the maturity levels of adolescents, is the dissent correct in its concern about drawing the line between childish behavior and sexual harassment? When children are too young to understand the sexual nature of the conduct they are engaged in, is it nonetheless sexual harassment? Do you believe that the requirement that the harassment be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school” provides a sufficiently clear line indicating what will subject schools to liability?

4. Justice Kennedy’s dissent expresses concern that the liability standard adopted in Davis will place schools in a difficult position where they feel435 compelled to respond to all forms of harassment and bullying when, in fact, much of it does not involve gender discrimination. In this respect, Title IX would be transformed into a student code of conduct. While it might be good school policy to prevent all bullying, harassment, and misbehavior, a broad policing of student conduct does not fall within the purview of federal legislation. Is the Court’s opinion sufficiently narrow so as to avoid this result?

5. The requirement that harassment be so severe, pervasive, and objectively offensive that it deprives a student of access to educational opportunity was not mentioned in Gebser in regard to teacher-on-student harassment. Is that because teacher harassment necessarily interferes with learning, because student harassment generally does not, or because the Court in Davis was simply attempting to limit the scope of schools’ potential liability?

6. Liability issues play a prominent role in sexual harassment cases. Prior to Davis, the Supreme Court in Gebser held that a district’s liability for sexual harassment by teachers does not flow from respondent superior principles; rather, liability flows only when “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” 524 U.S. at 285. The Davis Court, applying Gebser to the peer sexual harassment context, held that damages may be recoverable only if (1) the harassment is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school” and (2) the funding recipient is deliberately indifferent to sexual harassment of which it has actual knowledge, and which occurs in a setting that can be construed as under the recipient’s control and within its operations. 526 U.S. at 650. Do these liability standards incentivize or disincentivize reporting of sexual harassment by students, adequate responses by school officials, and adoption of preventative measures by schools?

7. Because actual notice is part of the prima facia case for sexual harassment under Title IX, a key factor in whether sexual harassment gets remedied by the institution or courts is often the willingness of the victim or someone close to the victim to come forward and report it. Research indicates that sexual harassment often goes unreported. See, e.g., Hill & Kearl, supra (although 48 percent of students in middle and high school experience sexual harassment, only about 9 percent report the incidents to the school); Catherine Hill & Elena Silva, Am. Ass’n of Univ. Women, Drawing the Line (2006) (finding that nearly two-thirds of college students experience some form of sexual harassment, but only 7 percent tell a college employee). Several factors contribute to the nonreporting of sexual harassment, including victims blaming themselves for the harassment, victims believing that those receiving complaints will minimize or disregard the severity and impact of the harassment, victims feeling ashamed that the incidents occurred, lack of knowledge of whom to report the incidents, fear of retribution for filing a complaint, ineffective complaint procedures, and the absence of effective remedies for victims. See generally Hill & Silva, supra. More than 66 percent of female students and 46 percent of male students suggest that schools establish an anonymous complaint system. Id. at 34. Would an anonymous complaint system have been any more effective in addressing the problems in436 the foregoing cases and problems? Are there any contexts in which it might be more effective?

8. Does the Court require any particular type of response or level of punishment for sexually inappropriate behavior? Here, one infers from the principal’s alleged comments that he had spoken to G.F. about his behavior. Might that have been sufficient regardless of his subsequent conduct? Why or why not? Even if a school does not respond to this sort of behavior with exclusionary punishment, at some point it must do more than simply talk to a student whose behavior continues unabated. Had the school reached that point here? Can a school reasonably forecast what that point is based on the Court’s opinion?

9. Lower courts have reiterated and adhered to the Court’s principle of deference in regard to the specific actions schools must take, but they have also found that, as a practical matter, schools’ responses should be effective and adequate efforts to stop the harassment. See, e.g., Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 262-263 (6th Cir. 2000) (finding the school’s ineffective measures to be evidence of deliberate indifference); Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 141 (2d Cir. 1999) (adhering to the Court’s “clearly unreasonable” standard); Murrell v. Sch. Dist., 186 F.3d 1238, 1247-1248 (10th Cir. 1999) (finding the school’s actions ineffective because they allowed harassment to continue); Jones v. Ind. Area Sch. Dist., 397 F. Supp. 2d 628, 644-646 (W.D. Pa. 2005) (not requiring any particular response other than that the school take additional action when it knows its previous ones to be ineffective or inadequate); Canty v. Old Rochester Reg’l Sch. Dist., 66 F. Supp. 2d 114, 117 (D. Mass. 1999) (finding if the school’s actions were “inadequate” to stop harassment, it must “‘take further steps’”) (quoting Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir. 1999)). Moreover, those effective and adequate efforts to stop the harassment should be taken without any unjustifiable delay. Hayut v. State Univ. of N.Y., 352 F.3d 733, 751 (2d Cir. 2003); Bruneau v. S. Kortright Cent. Sch. Dist., 163 F.3d 749, 761 (2d Cir. 1998). In short, the courts will not dictate that a school take specific action, but if the school’s chosen action allows harassment to continue, the courts will require the school to take further action. Wills, 184 F.3d at 26 (finding that if a school’s efforts “proved inadequate, it may be required to take further steps to avoid new liability”).

10. Title IX is not the exclusive remedy for sexual harassment in public schools. In Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009), the Supreme Court held that victims of sexual harassment at school might also bring a claim under 42 U.S.C. §1983. Section 1983 is the federal statute that creates federal court jurisdiction over deprivations of federal rights. The question in Fitzgerald was whether Congress intended to preclude other federal statutory and constitutional claims regarding sex discrimination when it enacted the remedial scheme of Title IX. The Supreme Court held that Congress did not intend for Title IX to preclude other claims.

Even where particular activities and particular defendants are subject to both Title IX and the Equal Protection Clause, the standards for establishing liability may not be wholly congruent. For example, a Title IX plaintiff can establish school district liability by showing that a single school administrator with authority to take corrective action responded to437 harassment with deliberate indifference. A plaintiff stating a similar claim via §1983 for violation of the Equal Protection Clause by a school district or other municipal entity must show that the harassment was the result of municipal custom, policy, or practice. In light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial scheme comparable to those at issue [in the cases where we rejected §1983 claims], we conclude that Title IX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for §1983 suits as a means of enforcing constitutional rights. Accordingly, we hold that §1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools.

Id. at 257-258 (internal citations omitted). The plaintiffs in Fitzgerald indicated that on remand, rather than attempt to show the deliberate indifference that Title IX requires, they would “advance claims of discriminatory treatment in the investigation of student behavior and in the treatment of student complaints.” Id. at 260. You may recall a similar theory of discrimination was raised earlier in cases in this chapter that address discrimination in admissions and the investigation of premarital sex. Pfeiffer v. School Board for Marion Center Area, 917 F.2d 779 (3d Cir. 1990); Tingley-Kelley v. Trustees of the University of Pennsylvania, 677 F. Supp. 2d 764 (E.D. Pa. 2010).

11. In addition to Title IX and Equal Protection claims under §1983, victims of harassment might also bring a state tort claim. Schools have a duty to reasonably supervise students while at school. See generally Victoria J. Dodd, Practical Education Law for the Twenty-First Century 232 (2003). If harassment or sexual assault occurred in a location and a time when a school reasonably should have been supervising students but was not, a victim might state a plausible claim. See Doe v. Dep’t of Educ. of City of New York, 862 N.Y.S.2d 598 (N.Y. App. Div. 2008). In other instances, however, the claim would be more difficult, as the victim would need to show that the harassment or assault was foreseeable and that the supervision provided was unreasonable. See, e.g., Doe v. Omaha Public School Dist., 727 N.W.2d 447 (Neb. 2007); Lennon v. Cornwall Cent. Sch. Dist., 132 A.D.3d 820 (N.Y. App. Div. 2015). It is not enough to simply show that the harm occurred at school.

Sexual harassment or assault may, under certain circumstances, fall under a state’s definition of child abuse. As such, school personnel who know of or reasonably suspect child abuse are required to report the abuse to the relevant child protection agency, although the failure to report does not alone give rise to a cause of action. Dodd, supra, at 244.

12. The cases in this section primarily address sexual harassment that arises from a sexually hostile environment. Another form of sexual harassment involves quid pro quo harassment, which “occurs most often when some benefit or adverse action, such as change in salary at work or a grade in school, is made to depend on providing sexual favors to someone in authority.” Wills, 184 F.3d 20.

PROBLEM

Anna is a sixth grader in Columbia Middle School. On the second day of school, some boys yelled at her in the hall, saying, “Oh, there’s that gay girl.”438 Anna complained to a school counselor, who then spoke to the boys. Two months later, an older boy sat down next to her on the bus and asked Anna to describe oral sex. She again reported it to the counselor, who then reported it to the principal. The principal suspended the student from the bus for three days. When the student returned, he cursed at Anna for reporting him and was even more vulgar than before. Out of fear, she did not report the matter. During her seventh-grade year, another boy confronted Anna in the presence of other students and demanded to know whether she was gay. Afterward, Anna reported the matter to the assistant principal. He said that the boys were flirting with her, so she should just “be friendly.” Later that year, Anna became the target of negativity from several students during the period between class changes. Random students regularly shoved her into walls, grabbed her book bag, and stole and destroyed her homework. Anna reported these incidents to a school counselor again, who said she would see what she could do.

No further incidents happened in the hall in the ensuing months, but one male student in her gym class called her and other female students “whores,” struck them, snapped their bras, and grabbed their butts. On one instance, he began taking things from Anna’s bag. When she tried to get a pen back from him, he stabbed her in the hand with the pen. The boy was taken to the principal’s office. The principal spoke to the boy and told him to stop bothering Anna. He told the principal he had a crush on her and was just pursuing his feelings. The next day the boy told Anna that the principal had spoken to him and he did not “give a damn about it and he would do whatever he wanted to.” His mistreatment of Anna continued thereafter for the rest of the semester.

Anna’s parents are now considering bringing suit under Title IX on her behalf. What are the merits of her claims?

PROBLEM

Alvin King is an associate professor in the history department at Blackstone University, which is a recipient of federal funds. In September 2010, Marissa Park, a freshman majoring in history, visited King’s office to discuss the previous day’s assignment. During the visit, King pulled Park into his lap, put his hand under her shirt, and touched her breasts. The next day Park met with the dean of the history department and filed a written complaint. After investigating the matter, the university placed King on probation and stated in a written reprimand that a further incident would be grounds for immediate dismissal. But since this was his first instance of misconduct, he would be permitted to remain on the faculty. In fact, the following spring his tenure was approved by the university.

Ms. Park remained in King’s class for the rest of the semester, but avoided any further contact with him. She received a B in the class. She did, however, hear that he had engaged in similar misbehavior toward other students in the past and was told that he harassed other women in her history class after she reported her incident. Although she was interested in the courses King was to teach in the spring, she felt uncomfortable enrolling in the classes. When she439 learned he was tenured, she felt it best to change her major from history to public administration.

Was the university’s response to her complaint legally sufficient? Did King’s continued presence at the school subject Park to sexual harassment?

J. RETALIATION

The Court’s willingness to recognize a cause of action for deliberate indifference to sexual harassment opened the door to causes of action for other behavior that interferes with students’ equal access and treatment in schools. The Supreme Court’s holding in Alexander v. Sandoval, 532 U.S. 275 (2001), that the only cause of action under Title VI (and by analogy Title IX) is for intentional discrimination potentially excludes various district actions and policies from legal challenge. But by treating a district’s deliberate indifference as a form of intentional discrimination, even though the district did not directly engage in any harassment itself, the Court implicitly recognized that intentional discrimination may have multiple forms and is not limited to instances of conscious desires to disadvantage a group based on gender or some other protected status.

In the Court’s next Title IX case after its sexual harassment decisions, Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Court addressed whether retaliation against someone who complains about potential gender discrimination gives rise to a cause of action. Although the plaintiffs had alleged that the district was treating its female athletes unfairly, the treatment may or may not have been intentional discrimination by the district. In this respect, Jackson was distinct from the sexual harassment cases because there was no serious dispute that sexual harassment is intentional discrimination. Thus, the precise issue in Jackson was whether retaliation, in and of itself, is a form of intentional discrimination. The Court held that Title IX does include a cause of action for retaliation, reasoning that Title IX

broadly prohibits a funding recipient from subjecting any person to “discrimination” “on the basis of sex.” Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is being subjected to differential treatment. Moreover, retaliation is discrimination “on the basis of sex” because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional “discrimination” “on the basis of sex,” in violation of Title IX.

Id. at 173-174 (internal citations omitted). The Court also offered a strong congressional intent and policy justification for this conclusion:

Congress enacted Title IX not only to prevent the use of federal dollars to support discriminatory practices, but also “to provide individual citizens effective protection against those440 practices.”…[T]his objective “would be difficult, if not impossible, to achieve if persons who complain about sex discrimination did not have effective protection against retaliation.” If recipients were permitted to retaliate freely, individuals who witness discrimination would be loath to report it, and all manner of Title IX violations might go unremedied as a result.…Title IX’s enforcement scheme also depends on individual reporting because individuals and agencies may not bring suit under the statute unless the recipient has received “actual notice” of the discrimination.

Id. at 180-181 (internal citations omitted).

K. SEXUAL ORIENTATION DISCRIMINATION

Discrimination based on real or perceived sexual orientation or gender identity has long been a reality in American society, including the education context. For some time this discrimination even had the sanction of law. In Bowers v. Hardwick, 478 U.S. 186 (1986), the Supreme Court upheld a state law that criminalized homosexual conduct. Rather than address the case as implicating a gay individual’s equal protection interests against discrimination, the Court framed it as involving the fundamental “right to engage in homosexual activity,” which the Court rejected. A decade later, the Supreme Court addressed the appropriate level of equal protection review for classifications discriminating against lesbian, gay, bisexual, and transgender (LGBT) people in Romer v. Evans, 517 U.S. 620 (1996). There, the Supreme Court examined an amendment to the Colorado state constitution that prohibited legislative, executive, judicial, and municipal action to protect LGBT people from discrimination. The Supreme Court applied rational basis review and found that the amendment lacked a rational relationship to legitimate state interests because the amendment’s sole motivation was animus toward LGBT people.

In 2003, the Supreme Court finally overruled Bowers in the landmark case Lawrence v. Texas, 539 U.S. 558 (2003). The majority held that substantive due process protects the right to privacy in intimate affairs and that the state lacked a legitimate interest to interfere with that privacy. Although the Court did not devote significant attention to equal protection issues, Justice O’Connor argued in her concurrence that the statute in question should be rejected on equal protection grounds, rather than due process, since anti-LGBT animus and “moral disapproval” are not legitimate governmental interests. Many commentators have read Lawrence to indicate that classifications based on sexual orientation are subject to a heightened form of rational basis review. See, e.g., Courtney A. Powers, Finding LGBTs a Suspect Class: Assessing the Political Power of LGBTs as a Basis for the Court’s Application of Heightened Scrutiny, 17 Duke J. Gender L. & Pol’y 385, 388 (2010); Neelum J. Wadhwani, Rational Views, Irrational Results, 84 Tex. L. Rev. 801, 801 (2006).

A decade later, the Supreme Court in United States v. Windsor, struck down the federal Defense of Marriage Act as unconstitutional. The Act had refused to recognize that some same-sex couples were, in fact, legitimately married under441 state law. Instead, it denied married same-sex couples certain federal benefits and privileges. The Court held that this denial violated equal protection of the law, primarily because Congress lacked any legitimate basis to discriminate against same-sex couples and was motivated by a desire to disadvantage those couples. United States v. Windsor, 133 S. Ct. 2675, 2693-2694 (2013). Two years later, the Court held that the fundamental right to marry also extended to same-sex couples. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Notwithstanding these constitutional advances, federal laws do not facially prohibit discrimination based on sexual orientation and gender identity, and the Court has yet to hold that classifications based on sexual orientation and gender identity should be subject to equal protection’s intermediate or strict scrutiny review. Moreover, the willingness to strike down antigay legislation does not necessarily translate into an affirmative duty to prevent the harassment of LGBT. The need for affirmative protection is particularly acute for LGBT youth who have no choice but to attend school in an environment that all too often subjects them to intimate and repeated harassment.

The advocacy group Gay, Lesbian, and Straight Education Network (GLSEN) regularly issues a National School Climate Survey report, based on surveys of more than 7,000 middle and high school students. The 2009 survey found that 84.6 percent of LGBT students reported being verbally harassed, 40.1 percent reported being physically harassed, and 18.8 percent reported being physically assaulted at school in the past year because of their sexual orientation. Nearly two-thirds (61.1 percent) reported that they felt unsafe in school because of their sexual orientation. Nearly one-third missed one or more days of school in the past month because of safety concerns, whereas about 7 to 8 percent of other students missed a day of school for safety concerns. The harassment also appears to have negative educational consequences. LGBT students experiencing more frequent harassment reported an average GPA of 2.7, whereas those experiencing less harassment reported a 3.1 GPA. As one would expect, harassment was also related to increased levels of depression and anxiety and decreased levels of self-esteem. See generally Joseph G. Kosciw et al., Gay, Lesbian, & Straight Educ. Network, 2009 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools (2010).

Given the unique concerns over the challenges and abuse faced by LGBT youth in schools, courts have recognized that, at least in some situations, discrimination based on sexual orientation is a form of gender discrimination. Courts have drawn on the idea articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), that sex stereotyping and different treatment based on the failure to conform to traditional gender roles are forms of discrimination “based on…sex.” The federal administration has, likewise, supported this understanding of sexual orientation discrimination in schools. But with the sexual harassment described in the Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), line of cases, a school’s liability may depend on a very contextualized evaluation of how a school responds to the harassment. In fact, the following case shows that even the most aggressive lower courts may require that victims of sexual orientation harassment show not that they were442 victims of antigay harassment but that they received differential treatment based on their sex, such as a school tolerating some level of harassment—sexual or otherwise—toward a boy that it would not have tolerated toward a girl. As you read the following cases, consider what types of harassment of LGBT people this analytical framework might remedy and what types it might not. Also consider whether this gap in coverage is tolerable or whether new legislation is appropriate.

Nabozny v. Podlesny

92 F.3d 446 (7th Cir. 1996)

Jamie Nabozny was a student in the Ashland Public School District in Ashland, Wisconsin throughout his middle school and high school years. During that time, Nabozny was continually harassed and physically abused by fellow students because he is homosexual. Both in middle school and high school Nabozny reported the harassment to school administrators. Nabozny asked the school officials to protect him and to punish his assailants. Despite the fact that the school administrators had a policy of investigating and punishing student-on-student battery and sexual harassment, they allegedly turned a deaf ear to Nabozny’s requests. Indeed, there is evidence to suggest that some of the administrators themselves mocked Nabozny’s predicament. Nabozny eventually filed suit against several school officials and the District alleging, among other things, that the defendants: 1) violated his Fourteenth Amendment right to equal protection by discriminating against him based on his gender; 2) violated his Fourteenth Amendment right to equal protection by discriminating against him based on his sexual orientation; 3) violated his Fourteenth Amendment right to due process by exacerbating the risk that he would be harmed by fellow students; and 4) violated his Fourteenth Amendment right to due process by encouraging an environment in which he would be harmed. The defendants filed a motion for summary judgment, which the district court granted. Because we agree with the district court only in part, we affirm in part, reverse in part, and remand.

[The alleged facts, which for purposes of summary judgment we must consider in the light most favorable to Nabozny, are as follows. “In elementary school, Nabozny proved to be a good student and enjoyed a positive educational experience.” But when Nabozny began the seventh grade at Ashland Middle School in 1988, his life changed. Nabozny realized that he is gay, as did his classmates. For the rest of his educational experience in the district’s schools, he was routinely subjected to extreme verbal and physical harassment, only the highlights of which are noted here. “In the seventh grade, Nabozny’s classmates regularly referred to him as ‘faggot,’ and subjected him to various forms of physical abuse, including striking and spitting on him.” That same year, after he and his family complained to the administration, similar treatment443 intensified. One student grabbed Nabozny and pushed him to the floor. A second student joined in and they held him down and subjected him to “a mock rape,” while they exclaimed that he “should enjoy it.” A group of twenty other students looked on and laughed. His eighth grade year was similarly riddled with physical attacks and intimidation. The harassment intensified to the point that Nabozny had to take time off from school. But it continued upon his return, leading him to attempt suicide and a hospital stay. During his ninth grade year, Nabozny was assaulted while using the urinal. Upon falling to the ground, a student then urinated on him. Shortly thereafter, Nabozny again attempted suicide. Next, he ran away from home. He only returned home because his parents promised that he would not have to return to his high school. But his parents were unable to afford private school, and social services ordered him to return to his public high school. During his tenth grade year, he was pelted with dangerous objects while riding the school bus. The worst incident occurred in the library, where a group of eight students confronted him and one kicked him in the stomach repeatedly for five [to] ten minutes while the others laughed. The beating was so severe that it caused internal bleeding.

Throughout this time, Nabozny’s parents continually met with school officials and demanded that action be taken to stop the harassment. Almost no action beyond talking with the offending harassers was ever taken. Sometimes the response was to move Nabozny rather than punish the offenders. For instance, they once moved Nabozny to a special education class on the premise that he would not be bothered there. On two other instances, school administrators went so far as to indicate that “if he was ‘going to be so openly gay,’ he should ‘expect’ such behavior.’” These responses seemingly emboldened his attackers. Finally, in his eleventh grade year, Nabozny withdrew from Ashland High School. A guidance counselor, who appeared to have been his only advocate within the school, “told Nabozny and his parents that school administrators were unwilling to help him and that he should seek educational opportunities elsewhere. Nabozny left Ashland and moved to Minneapolis where he was diagnosed with Post Traumatic Stress Disorder.”]

III

The Equal Protection Clause grants to all Americans “the right to be free from invidious discrimination in statutory classifications and other governmental activity.” Harris v. McRae, 448 U.S. 297, 322 (1980). When a state actor turns a blind eye to the Clause’s command, aggrieved parties such as Nabozny can seek relief pursuant to 42 U.S.C. §1983. In order to establish liability under §1983, Nabozny must show that the defendants acted with a nefarious discriminatory purpose, Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979), and discriminated against him based on his membership in a definable class. A showing that the defendants were negligent will not suffice. Nabozny must show that the defendants acted either intentionally or with deliberate indifference. To escape liability, the defendants either must prove that they did not discriminate against Nabozny, or at a bare minimum, the defendants’ discriminatory conduct must satisfy one of two well-established standards of review:444 heightened scrutiny in the case of gender discrimination, or rational basis in the case of sexual orientation.

A. Gender and Equal Protection

The district court disposed of Nabozny’s equal protection claims in two brief paragraphs. Regarding the merits of Nabozny’s gender claim, the court concluded that “[t]here is absolutely nothing in the record to indicate that plaintiff was treated differently because of his gender.” The district court’s conclusion affords two interpretations: 1) there is no evidence that the defendants treated Nabozny differently from other students; or, 2) there is no evidence that the discriminatory treatment was based on Nabozny’s gender. We will examine each in turn.

The record viewed in the light most favorable to Nabozny, combined with the defendants’ own admissions, suggests that Nabozny was treated differently from other students. The defendants stipulate that they had a commendable record of enforcing their anti-harassment policies[, which under Wisconsin state law included protections against sexual orientation discrimination]. Yet Nabozny has presented evidence that his classmates harassed and battered him for years and that school administrators failed to enforce their anti-harassment policies, despite his repeated pleas for them to do so. If the defendants otherwise enforced their anti-harassment policies, as they contend, then Nabozny’s evidence strongly suggests that they made an exception to their normal practice in Nabozny’s case.

Therefore, the question becomes whether Nabozny can show that he received different treatment because of his gender. Nabozny’s evidence regarding the defendants’ punishment of male-on-female battery and harassment is not overwhelming. Nabozny contends that a male student that struck his girlfriend was immediately expelled, that males were reprimanded for striking girls, and that when pregnant girls were called “slut” or “whore,” the school took action. Nabozny’s evidence does not include specific facts, such as the names and dates of the individuals involved. Nabozny does allege, however, that when he was subjected to a mock rape Podlesny responded by saying “boys will be boys,” apparently dismissing the incident because both the perpetrators and the victim were males. We find it impossible to believe that a female lodging a similar complaint would have received the same response.

More important, the defendants do not deny that they aggressively punished male-on-female battery and harassment. The defendants argue that they investigated and punished all complaints of battery and harassment, regardless of the victim’s gender. According to the defendants, contrary to the evidence presented by Nabozny, they aggressively pursued each of Nabozny’s complaints and punished the alleged perpetrators whenever possible. [But i]n the context of summary judgment, we must assume that Nabozny’s version is the credible one.

The defendants also argue that there is no evidence that they either intentionally discriminated against Nabozny, or were deliberately indifferent to his complaints. The defendants concede that they had a policy and practice of punishing perpetrators of battery and harassment. It is well settled law that445 departures from established practices may evince discriminatory intent. Village of Arlington Heights v. Metropolitan Housing Dev., 429 U.S. 252 (1977). Moreover, Nabozny introduced evidence to suggest that the defendants literally laughed at Nabozny’s pleas for help. The defendants’ argument, considered against Nabozny’s evidence, is simply indefensible.

B. Sexual Orientation and Equal Protection

[Because there was a lack of clarity in the district court’s rational for dismissing Nabozny’s sexual orientation claim,] we will assume that the court’s disposition of Nabozny’s sexual orientation claim was synonymous with, and on the same grounds as, the court’s disposition of Nabozny’s gender claim.

First we must consider whether Nabozny proffered a sufficient evidentiary basis to support his claim. As we noted above, Nabozny’s evidence, combined with the defendants’ admissions, demonstrates that Nabozny was treated differently. What is more, Nabozny introduced sufficient evidence to show that the discriminatory treatment was motivated by the defendants’ disapproval of Nabozny’s sexual orientation, including statements by the defendants that Nabozny should expect to be harassed because he is gay.

In this case we need not consider whether homosexuals are a suspect or quasi-suspect class, which would subject the defendants’ conduct to either strict or heightened scrutiny. The rational basis standard is sufficient for our purposes herein.

Under rational basis review there is no constitutional violation if “there is any reasonably conceivable state of facts” that would provide a rational basis for the government’s conduct. We are unable to garner any rational basis for permitting one student to assault another based on the victim’s sexual orientation, and the defendants do not offer us one. Like Nabozny’s gender claim, the defendants argue that they did not discriminate against Nabozny.

Absent any rational basis for their alleged discrimination, the defendants are left to argue that the principle that the Constitution prohibits discrimination between similarly situated persons based on membership in a delineable class was somehow unclear back in 1988. We find that suggestion unacceptable. As early as 1886 the Supreme Court held that if the law “is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). Further, almost every case that we have cited thus far was decided prior to the events giving rise to this litigation.

Our discussion of qualified immunity cannot end without mentioning one case in the area of “homosexual rights” commonly cited during the period in question: Bowers v. Hardwick, 478 U.S. 186 (1986). In Bowers, the Supreme Court ruled that state sodomy statutes that prohibit sodomy performed in private between two consenting adults do not run afoul of an individual’s Fourteenth Amendment right to substantive due process. We will address Nabozny’s due process arguments below. However, reliance on Bowers by the defendants in this446 case is misplaced. Bowers addressed the criminalization of sodomy. The defendants make no mention of sodomy as a motive for their discrimination. To the contrary, the defendants offer us no rational basis for their alleged conduct. The defendants certainly cannot rely on Bowers’s rational basis analysis to establish qualified immunity when they do not assert a rational basis for their alleged conduct, and expressly maintain that they did not discriminate on the basis of sexual orientation.

Therefore, although it presents a closer question than does Nabozny’s gender claim, we hold that reasonable persons in the defendants’ positions in 1988 would have concluded that discrimination against Nabozny based on his sexual orientation was unconstitutional.

Now we turn to Nabozny’s due process arguments. We believe that in order to clarify the nature of Nabozny’s due process theories, it is necessary to specify what Nabozny does not argue. However untenable it may be to suggest that under the Fourteenth Amendment a state can force a student to attend a school when school officials know that the student will be placed at risk of bodily harm, our court has concluded that local school administrations have no affirmative substantive due process duty to protect students. J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272-73 (7th Cir. 1990). In Alton Cmty., we relied on the Supreme Court’s opinion in DeShaney v. Winnebago Cnty. Dep’t of Social Services to conclude that school administrators do not have a “special relationship” with students. Absent a “special relationship,” a state actor has no duty to protect a potential victim.

Nabozny argues that the defendants should be liable because they enhanced his risk of harm, and because their policies encouraged a climate in which he suffered harm. We will consider each theory in turn. First, Nabozny argues that by failing to punish his assailants the defendants exacerbated the risk that he would be harmed, or even encouraged the students to harm him. We agree with Nabozny in principle that the defendants could be liable under a due process theory if Nabozny could show that the defendants created a risk of harm, or exacerbated an existing one. After a thorough review of the record, however, we must agree with the district court that Nabozny’s claim suffers from a paucity of evidence. Nabozny has presented evidence to show that the defendants failed to act, and that their failure to act was intentional. But, as we noted, Alton Cmty. held that the defendants had no affirmative duty to act. The defendants’ failure to act left Nabozny in a position of danger, but nothing suggests that their failure to act placed him in the danger, or increased the pre-existing threat of harm. Nabozny has presented “wrenching” facts, but there is insufficient evidence from which a reasonable factfinder could conclude that the defendants’ conduct increased the risk of harm to Nabozny beyond that which he would have faced had the defendants taken no action.

Under Nabozny’s second theory, he argues that the defendants violated his right to due process by acting with deliberate indifference in maintaining a policy or practice of failing to punish his assailants, thereby encouraging a447 harmful environment. The district court rejected Nabozny’s argument because the harm he suffered was not perpetrated by school employees. On appeal, Nabozny challenges the district court’s reasoning, arguing that liability can result regardless whether students or teachers inflicted the harm.

Nabozny argues, and presents facts suggesting, that the defendants had a policy or practice of ignoring his pleas for help, and that as a result, he was repeatedly assaulted. Nabozny’s theory has one fatal flaw: it rests on a failure to act. Under Alton Community the defendants had no duty to act. Therefore, to hold them liable for adopting a practice of failing to act would run directly counter to Alton Community.

We conclude that, based on the record as a whole, a reasonable fact-finder could find that the District and [school administrators] violated Nabozny’s Fourteenth Amendment right to equal protection by discriminating against him based on his gender or sexual orientation. Further, the law establishing the defendants’ liability was sufficiently clear to inform the defendants at the time that their conduct was unconstitutional. We further conclude that Nabozny has failed to produce sufficient evidence to permit a reasonable fact-finder to find that the defendants violated Nabozny’s Fourteenth Amendment right to due process either by enhancing his risk of harm or by encouraging a climate to flourish in which he suffered harm. Our disposition of Nabozny’s due process claims renders the district court’s award of qualified immunity as to those claims moot. The decision of the district court is affirmed in part, reversed in part, and remanded.

NOTES AND QUESTIONS

1. On what factual predicate does Nabozny’s gender discrimination claim rest? Assume that a school does not seriously prosecute nonviolent male-on-female harassment. If this were the case, by the court’s reasoning in Nabozny, male-on-male harassment of a gay student would not necessarily present a case of gender discrimination. Nabozny, however, predates Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Under Davis, would the failure to prosecute male-on-female harassment potentially amount to deliberate indifference? In other words, a school’s lax enforcement of male-on-female harassment might be irrelevant because Title IX demands a response. This point would be potentially important where a gay youth suffers nonviolent harassment and struggles to present evidence of similarly situated females being treated differently. The court in Nabozny indicated that it was hard for it to imagine the school would have responded the same had Nabozny been a female. This supposition by the court is the sort of normative-based analysis that some scholars argue should guide the courts’ analysis of racial and other forms of discrimination because probative evidence of similarly situated individuals is often missing. See, e.g., john a. powell, Racing to Justice: Transforming Our Conceptions of Self and Other to Build an Inclusive Society (2012); Derek W. Black, The Contradiction Between Equal Protection’s Meaning and Its Legal Substance: How Deliberate Indifference Can Cure It, 15 Wm. & Mary Bill of Rts. J. 533 (2006).

448

2. The court also holds that Nabozny’s claims of sexual orientation discrimination would be sufficient to sustain a claim of denial of equal protection, even if sexual orientation is not a suspect class. What is the court’s rationale? How does the court distinguish this alleged sexual orientation discrimination from other sexual orientation discrimination that courts have upheld?

3. Does framing harassment of LGBT youth as an issue of differential treatment based on sex rather than sexual orientation correctly frame the issue? Does framing it as sex harassment understate or mischaracterize the harassment in any way? Does framing it as sex discrimination demonstrate that “special protection” for orientation is not necessary, or does this framework create a gap in the analysis that would leave some instances of harassment permissible?

4. After being notified of the harassment and battery that Nabozny was experiencing, the defendant school principal Podlesny responded that “boys will be boys.” Consider Justice Kennedy’s dissent in Davis, where he expressed concern that (1) the recognition of peer-on-peer sexual harassment will place schools in the position of having to respond to harassment faced by girls the same way as harassment faced by boys; (2) there is little guidance for schools to distinguish “between the simple acts of teasing and name-calling among school children” and what is actionable sexual harassment; and (3) tort remedies are sufficient to address most “egregious cases.” Both Kennedy and the majority agree that some harassment does not fall under the category of sexual harassment or is not serious enough to expose a school to liability. Does harassment of LGBT youth based on their sexual orientation, by its very nature, necessarily give rise to serious harassment that demands a response, or does some harassment merely fall into the category of “kids being kids”? Does the problem with drawing this line with LGBT youth suggest Kennedy’s concerns were well founded?

5. Twice when Nabozny reported the harassment he faced, including after the “mock rape” incident, Podlesny allegedly responded that if Nabozny was “going to be so openly gay,” he should “expect” such behavior. This statement implicates two premises sometimes used to rationalize the harassment of LGBT youth: (1) LGBT youth are harassed for their behavior rather than their sexual orientation; and (2) LGBT youth “asked for” or provoked the discrimination, harassment, or abuse. The district did not attempt to raise these notions as a legal defense, but such notions have been asserted elsewhere, particularly by the assailants themselves. See, e.g., Kavita B. Ramakrishnan, Inconsistent Legal Treatment of Unwanted Sexual Advances: A Study of Sexual Harassment in the Workplace, 26 Berkeley J. Gender L. & Just. 291 (2011); Christina Pei-Lin Chen, Note, Provocations’ Privileged Desire: The Provocation Doctrine, “Homosexual Panic,” and the Non-Violent Sexual Advance Defense, 10 Cornell J. L. & Pub. Pol’y 195 (2000).

6. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court ruled that discrimination based on a claimant’s failure to conform to sex stereotypes is discrimination “because of sex” within the meaning of Title VII. Later, in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Supreme Court recognized that claims based on same-sex sexual harassment are actionable under Title VII, but emphasized that an employee must be able to prove that the discrimination is “because of sex,” not sexual orientation. A number of cases have suggested that victims of sexual orientation harassment can meet the Oncale449 standard through the Price Waterhouse theory when, for instance, a gay male is harassed for his failure to conform to stereotypical expectations of masculinity. See, e.g., Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Schmedding v. Tnemec Co., 187 F.3d 862, 865 (8th Cir. 1999); Doe v. S.E. Greene Sch. Dist., 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. Mar. 24, 2006); Schroeder ex rel. Schroeder v. Maumee Bd. of Educ., 296 F. Supp. 2d 869, 879-880 (N.D. Ohio 2003); Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081 (2000); Carrasco v. Lenox Hill Hosp., 2000 U.S. Dist. LEXIS 5637, 2000 WL 520640, at *8 (S.D.N.Y. Apr. 28, 2000). But see Bibby v. Phila. Coca Cola Bottling Co., 85 F. Supp. 2d 509, 517 (E.D. Pa. 2000); Dandan v. Radisson Hotel Lisle, 2000 U.S. Dist. LEXIS 5876, 2000 WL 336528, at *4 (N.D. Ill. Mar. 28, 2000) (same). In Franklin v. Gwinnett County Public School Board, 503 U.S. 60, 74 (1992), the Supreme Court cited Title VII precedent in holding that sexual harassment was gender discrimination within the meaning of Title IX.

7. Several federal courts have extended this sex-stereotyping theory to Title IX, reasoning that the question is not whether Title IX prohibits sexual orientation discrimination but sex stereotyping. See, e.g., Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135, 151 (N.D.N.Y. 2011). Others have emphasized that it is simply impossible to distinguish between sexual orientation discrimination and sex discrimination and, thus, both must be covered by Title IX. See, e.g., Videckis v. Pepperdine Univ., 2015 WL 8916764, at *7 (C.D. Cal. Dec. 15, 2015) (“sexual orientation discrimination is a form of sex or gender discrimination, and that the ‘actual’ orientation of the victim is irrelevant. It is impossible to categorically separate ‘sexual orientation discrimination’ from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender.”). The response, however, has not been uniform, with some courts refusing to recognize claims. Tyrrell v. Seaford Union Free Sch. Dist., 792 F. Supp. 2d 601, 622 (E.D.N.Y. 2011) (“harassment or discrimination based upon sexual orientation is not prohibited under…Title IX.”); Kirby v. N. Carolina State Univ., 2015 WL 1036946, at *5 (E.D.N.C. Mar. 10, 2015), aff’d, 615 F. App’x 136 (4th Cir. 2015) (same). In §1983 cases, some schools have raised a slight different defense, arguing that they should be entitled to qualified immunity because at the time of their actions it was not clear that sexual orientation discrimination was prohibited. See, e.g., Flores v. Morgan Hill Unified School District, 324 F.3d 1130, 1137 (9th Cir. 2003) (emphasizing that as early as 1990 the Ninth Circuit in High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), had “established that homosexuals were a definable minority prior to the period of the alleged discrimination in this case.”).

8. At least for administrative complaint purposes (which may later bleed over into court opinions), the Office for Civil Rights has clarified the way in which it interprets Title IX to apply to discrimination based on sexual orientation. It explained

Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT)450 students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also, as this example illustrates, be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment. In this example, the harassing conduct was based in part on the student’s failure to act as some of his peers believed a boy should act. The harassment created a hostile environment that limited the student’s ability to participate in the school’s education program (e.g., access to the drama club). Finally, even though the student did not identify the harassment as sex discrimination, the school should have recognized that the student had been subjected to gender-based harassment covered by Title IX.

U.S. Dep’t of Educ., Harassment and Bullying, Dear Colleague Letter 3 (Oct. 26, 2010). Is this clarification sufficient to cover the various types of discrimination LGBTQ youth might suffer?

9. Putting aside the issue of harassment based on sexual orientation, could one argue that a significant amount of male-on-male and female-on-female harassment is based on sex stereotyping and is aimed at “policing” the boundaries of so-called male or female behavior?

10. While Nabozny himself identified as homosexual, the theory adopted by the Nabozny court is equally applicable to those who are “perceived to be” LGBT. Most of the cases on same-sex sexual harassment involve plaintiffs who openly identify as LGBT, but many who are perceived to be LGBT are also victims of sexual harassment. “When these victims file Title VII claims, the courts must grapple with the issue of whether the mere perception of homosexuality transforms a sexual discrimination claim into a de facto sexual orientation discrimination claim.” Jeremy S. Barber, Comment, Re-Orienting Sexual Harassment: Why Federal Legislation Is Needed to Cure Same-Sex Sexual Harassment Law, 52 Am. U. L. Rev. 493, 513 (2004).

In Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002), a district court found that the plaintiff could not assert a claim of discrimination based on sexual orientation because “the law is relatively clear that discrimination on the basis of sexual orientation is not barred under Title VII” and, in any event, “plaintiff never informed anyone in his workplace about his sexual orientation.” 183 F. Supp. 2d at 408, 410. But plaintiff could assert a straightforward claim of sex discrimination because the motivation for the harassment must have been his failure to “conform with [the other employees’] ideas about what a ‘real’ man should look or act like.” Id. at 410. If a plaintiff “can demonstrate that he was discriminated against ‘because of…sex’ as a result of sex stereotyping, the fact that he was also discriminated against on the basis of his sexual orientation has no legal significance under Title VII.” Id. The court emphasized that “the line between discrimination because of sexual orientation and discrimination because of sex is hardly clear. Sex stereotyping is central to all discrimination: Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person’s gender, assumptions that may or may not be true.” Id. at 408-409. But see Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000) (rejecting claim of sexual orientation sexual harassment because plaintiff was perceived to be a gay451 man, even though the harassers must have relied on sex stereotypes to perceive him as gay); Dandan v. Radisson Hotel Lisle, 2000 WL 336528 (N.D. Ill. 2000) (rejecting arguments similar to those in Centola).

One commentator argues that courts that reject this distinction allow defendants “who would otherwise be found liable…to escape legal responsibility for discriminatory practices by claiming they were motivated by homophobia—rather than sexism—regardless of the truth behind such an assertion.” Barber, supra, at 517; see also Mims v. Carrier Corp., 88 F. Supp. 2d 706 (E.D. Tex. 2000) (dismissing heterosexual claimant’s complaint since the harassers erroneously perceived him as gay, and therefore the harassment was based on sexual orientation). There is some indication that claims under the Nabozny theory in the Title IX context fare better than similar claims in the Title VII employment context. See, e.g., Martin v. Swartz Creek Cmty. Schs., 419 F. Supp. 2d 967 (E.D. Mich. 2006); Schroeder v. Maumee Bd. of Educ., 296 F. Supp. 2d 869 (N.D. Ohio 2003); Montgomery v. Indep. School Dist. No. 709, 109 F. Supp. 2d 1081, 1090-1001 (D. Minn. 2000); Ray v. Antioch Unified Sch. Dist., 107 F. Supp. 2d 1165, 1169 (N.D. Cal. 2000). But see Rodriguez v. Alpha Inst. of S. Fla., 2001 U.S. Dist. LEXIS 124584 (S.D. Fla. Oct. 27, 2001); M.D. v. Sch. Bd. of City of Richmond, 560 F. App’x 199, 203 (4th Cir. 2014).

As alluded to in Nabozny and other cases in the notes, many states and local governments have adopted statutes defining sexual orientation as a protected class. In total, 21 states, more than 100 cities and counties have adopted such legislation. Fifteen states and the District of Columbia also include gender identity/expression within such prohibitions. Nat’l Gay & Lesbian Task Force/Transgender L. & Pol’y Inst., State Nondiscrimination Laws in the U.S., Fact Sheet (June 2011). Seventeen states and the District of Columbia apply their laws prohibiting discrimination, harassment, and/or bullying based on sexual orientation specifically to education. Hum. Rts. Campaign, Statewide School Laws and Policies (July 6, 2001), available at http://www.hrc.org/state_laws; Nat’l Gay & Lesbian Task Force/Transgender L. & Pol’y Inst., Scope of Explicitly Transgender-Inclusive Anti-Discrimination Laws, Fact Sheet (July 2008) (also noting 46 local jurisdictions that cover education, including Phoenix, Arizona; Los Angeles, Santa Cruz County, Santa Cruz, and San Diego, California; Denver, Colorado; Washington, D.C.; Bloomington and Indianapolis, Indiana; State of Iowa; State of Maine; Baltimore, Maryland; Boston, Cambridge, and Northampton, Massachusetts; Ann Arbor, Detroit, East Lansing, Ferndale, Grand Rapids, Huntington Woods, Lansing, Saugatuck, and Ypsilanti, Michigan; State of Minnesota; State of New Jersey; New York City, Ithaca, and Tompkins County, New York; Cincinnati and Toledo, Ohio; State of Oregon; Easton, Harrisburg, Lansdowne, and Philadelphia, Pennsylvania; and the State of Washington); see also Ill. Admin. Code tit. 23, §1.240 (2009); Vt. Stat. Ann. tit. 16, §565 (2010).

State courts have also rendered decisions that provide LGBT persons more protection, holding that sexual orientation classifications are subject to strict452 scrutiny review. See, e.g., Doe v. Reg’l Sch. Unit 26, 86 A.3d 600, 606-607 (2014); In re Marriage Cases, 43 Cal. 4th 757, 840-841 (2008).

Localities and progressive school districts, likewise, have taken up these issues on their own by adopting school based antibullying ordinances and policies. See generally Nat’l Safe Sch. P’ship, Bridging the Gap in Federal Law: Promoting Safe Schools and Improved Student Achievement by Preventing Bullying and Harassment in Our Schools (2007) (discussing policy changes to promote safer schools); see also Bully Police USA, http://www.bullypolice.org/ (last visited Feb. 28, 2013) (noting that 43 states have antibullying statutes).

Bullying, however, encompasses a broader spectrum of behavior and is not limited to the protection of LGBT youth. “Bullying” is often used interchangeably with peer harassment, but bullying denotes intentionally aggressive behavior inflicted on a repeated basis by one or more students against another. “What distinguishes bullying from mere aggression is that bullying is repetitive and involves a power imbalance between a socially powerful perpetrator and a socially weaker victim. Hence, bullies prey on students who are often marginalized in the wider school community because of actual or perceived differences such as obesity, disability, or sexual orientation.” Julie Sacks & Robert Salem, Without Legal Remedies: Why Kids Need Schools to Develop Comprehensive Anti-Bullying Policies, 72 Alb. L. Rev. 147, 148-149 (2009). While bullying takes many forms, it primarily singles out a student based on actual or perceived race/ethnicity, physical appearance, income level/class, disability, gender identity, sexual orientation, or physical or intellectual ability. See Dana Markow & Jordan Fein, From Teasing to Torment: School Climate in America—A Survey of Students and Teachers 2 (2005). Substantial research indicates that students who are, or are perceived to be, LGBT are severely and disproportionately targets of bullying behavior, often with little effective responses from school authorities. See generally Joseph G. Kosciw et al., Gay, Lesbian, & Straight Educ. Network, 2009 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools (2010); see also Michael Higdon, To Lynch a Child: Bullying and Gender Nonconformity in Our Nation’s Schools, 86 Ind. L.J. 827 (2011) (arguing that much of bullying is a way to enforce gender roles and the homophobic complicity of educators make the effects of bullying all the more severe for LGBT youth).

Given the availability of claims under Title IX and tort law, some argue that these local antibullying statutes are unnecessary. Susan Hanley Kosse & Robert H. Wright, How to Best Confront the Bully: Should Title IX or Anti-Bullying Statutes Be the Answer, 12 Duke J. Gender L. & Pol’y 53 (2005). Such arguments, however, may miss the more fundamental problem, which is that the availability of legal recourse for deliberate indifference, for instance, may do little to prevent the harmful conduct from occurring in the first place. Rather, local policies may be necessary to root out the harassing behavior before it happens. Recognizing this, many advocates propose antibullying policies that include provisions requiring extensive data collection, clarity on what is considered bullying, training for staff and designation of parties responsible for review and compliance, bullying prevention school curricula and programs, and clear complaint procedures and incentives for compliance. See generally Higdon, supra.

453

While many jurisdictions have adopted such policies, most do not include protections for students bullied based on real or perceived sexual orientation or gender identity. Gay, Lesbian, & Straight Educ. Network, States with Fully Enumerated Anti-Bullying Laws—US Map, https://safespace.glsen.org/map.cfm (last visited Feb. 28, 2013). Further, some states have begun to allow an exemption to antibullying policies for “a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil’s parent or guardian.” See Brody Levesque, Critics Blast Anti-Bullying Law for Allowing Exceptions Based on Religion, Moral Beliefs, LGBTQNATION, Nov. 3, 2011. Exceptions of this sort sanction anti-LGBT bullying and schools’ failure to respond.

Considering the homophobia and social alienation faced by many LGBT students, some have sought self-help. In particular, students have attempted to establish supportive spaces within their schools, most commonly referred to as Gay Straight Alliances (GSA). Some school boards, administrators, and local communities oppose these efforts. An important tool for GSA activists has been the Equal Access Act, 20 U.S.C. §§4071-4074 (2006) (EAA). Under the Act, a school receiving federal funds that sponsors or sanctions noncurricular student-led clubs must give all clubs equal access to meeting spaces and school publications and cannot prohibit a group based on “political, philosophical, or other content” of speech, except if the group “materially and substantially interfere[s] with the orderly conduct of educational activities within the school.” Although the Act was originally passed to allow religious and bible study groups to use school buildings and resources, it has been a powerful tool to establish GSAs. See Boyd Cnty. High Sch. Gay Straight Alliance v. Bd. of Educ., 258 F. Supp. 2d 667, 693 (E.D. Ky. 2003); Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135 (C.D. Cal. 2000). A more expanded discussion of the EAA and the First Amendment rights of students is included in later chapters.

Skeptical of the efficacy of legal protections, another more aggressive approach to address the challenges faced by LGBT students in normal school environments has been to establish separate schools specially designed to meet the needs of LGBT students. A number of school districts have established publicly funded schools for LGBT students, most notably NYC’s Harvey Milk High School, Milwaukee’s Alliance School, and Los Angeles’s Opportunities for Learning and Lifeworks multilocation charter school. Such institutions have been subject to extensive controversy, echoing the concerns of opponents of single-sex education regarding schools segregated based on identity. See, e.g., Randy Hedlund, Chalk Talk: Segregation by Any Other Name: Harvey Milk High School, 33 J.L. & Educ. 425 (2004); Louis P. Nappen, Why Segregated Schools for Gay Students May Pass a “Separate But Equal” Analysis but Fail Other Issues and Concerns, 12 Wm. & Mary J. of Women & L. 101 (2005). Other opponents stress the importance of ensuring that all schools are bullying- and harassment-free spaces where diversity and individual identity is embraced, and argue that removing LGBT students from mainstream educational environments reinforces the notion that those students are different. See, e.g., John Colapinto, The Harvey Milk School Has No Right to Exist. Discuss., N.Y. Mag., May 21, 2005. Proponents tout their higher graduation and college acceptance rates, stress the voluntary454 nature of such schools, emphasize that the schools are open to all students regardless of sexual orientation or gender identity, and argue that these schools are necessary in a context of the emotional and physical violence faced by LGBT students in traditional educational environments, the family rejection commonly experienced by LGBT youth, and the systemic failure of schools to effectively protect LGBT youth. See, e.g., Thomas A. Mayes, Counterpoint, Separate Public High Schools for Sexual Minority Students and the Limits of the Brown Analogy, 35 J.L. & Educ. 339 (2006); Kristina Brittenhan, Note, Equal Protection Theory and the Harvey Milk High School: Why Anti-Subordination Alone Is Not Enough, 45 B.C. L. Rev. 869 (2004).

Considering what you learned in the single-sex education and LGBT student sections, are these schools constitutionally permissible? How would LGBT schools fare under Title IX? Are antibullying legislation and other safe schools efforts sufficient to meet the needs of LGBT students? What if antibullying legislation did not explicitly include a prohibition for discrimination based on real or perceived sexual orientation and gender identity? What if antibullying policies are inadequately enforced?

PROBLEM

Mark, a ninth grader, wore a “fashion forward” shirt to school one day. His male classmates perceived the shirt to be “gay” rather than fashion forward. A few boys circulated a rumor that Mark is gay. During lunch, Steve, who had heard the rumor, walked by Mark’s table and threw a banana on it, saying “here faggot. Maybe you can make use of this.” Many onlookers burst into laughter. Mark did not tell his family and instead feigned sickness to stay home for two days. On the third day, his mother discovered the truth, immediately called the principal (Mr. Davis), and demanded something be done. Davis said he would investigate the matter, and Mark returned to school.

Davis spoke with the cafeteria monitor, who indicated he had witnessed the event from afar, but did not intercede or follow up. Thus, Davis called Steve to the office, reprimanded him, and told him to “leave Mark alone.” The following week, Steve approached Mark and told him that he would “beat the crap out of him if he ever ratted him or anyone else out again.” Afterward, taunting by Steve and others increased. Mark found graphic sexual drawings anonymously taped to his locker. People would cut him in the cafeteria line, bump him in the hallway, and knock books off his desk, all of which were often followed by comments like “oops” or “sorry, it was an accident.” Mark believed the apologies to be insincere, but told no one of his troubles. During this time, Mark’s grades steadily dropped from As to Bs and Cs and he generally withdrew from any active engagement in school. He also found it difficult to sleep at night.

Did the school have an obligation to take more action than it did? What claims could Mark’s mother bring if she learns of these incidents, and what will the result likely be?

455

L. GENDER IDENTITY DISCRIMINATION

While most of the cases and discussion in this section most directly focus on discrimination based on sexual orientation, the analysis and law also implicate the educational opportunities of transgender students. The term “transgender” encompasses several categories of students, including those whose biological sex does not correspond to their gender identity, a person whose gender identity does not conform to either male or female roles, and those whose biological sex is intersexed (meaning they have some aspects of both male and female anatomies). Transgender students often face a set of challenges analogous to but distinct from lesbian and gay students. For instance, because their gender identity does not conform to societal expectations, restrooms and locker rooms can be a frightening and even dangerous place, which often forces transgender students to avoid using the bathrooms altogether. See generally Transgender L. Ctr., Peeing in Peace: A Resource for Transgender Activists and Allies 3 (2005) (noting that, even in jurisdictions with robust protections and community support for transgender people, 50 percent of respondents in a survey reported being assaulted or harassed in a public restroom).

1. Access to School Restrooms and Other Facilities

Courts traditionally have been reluctant to recognize the prohibition on the use of bathrooms by transgender people in conformity with their gender identity as discriminatory. Lisa Mottet, Transgender Civ. Rts. Project, Speech at Georgetown Symposium on Gender & Sexuality (Feb. 27, 2002), in Access to Gender-Appropriate Bathrooms: A Frustrating Diversion on the Path to Transgender Equality, 4 Geo. J. Gender & L. 739, 744 (2003) (citing Goins v. W. Group, 635 N.W.2d 717 (Minn. 2001)). But see Doe v. Yunits, 2001 WL 664947 (Mass. Super. Ct. Feb. 26, 2001) (referencing bathroom access, and discipline for using the “wrong” bathroom, as one of the aspects of gender discrimination affecting transgender students). In recent years, however, judicial and agency responses have been more favorable.

Between 2010 and 2015, the Department of Education issued policy guidance on more than one occasion indicating that not only did Title IX prohibit discrimination based on sexual orientation in certain instances, it prohibited discrimination based on gender identity:

Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also, as this example illustrates, be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment. In this example, the harassing conduct was based456 in part on the student’s failure to act as some of his peers believed a boy should act. The harassment created a hostile environment that limited the student’s ability to participate in the school’s education program (e.g., access to the drama club). Finally, even though the student did not identify the harassment as sex discrimination, the school should have recognized that the student had been subjected to gender-based harassment covered by Title IX.

Office of the Assistant Secretary, Dear Colleague Letter 8, October 26, 2010. See also Office of Civil Rights, Dept. of Educ., Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities 25 (2014) (“All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX. Under Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”).

With that guidance in place, students began to assert their rights and several highly visible fights over access to school facilities made the national news. Even under the threat of funding termination, one district in suburban Chicago initially refused to comply with the Department’s policy position that Title IX requires that a transgender student be granted access to facilities consistent with the student’s gender. Duaa Eldeib, Feds: Palatine District Discriminated Against Transgender Student by Barring Her from Girls’ Locker Room, Chicago Tribune, Nov. 3, 2015. Relatively quickly, however, districts like this one began to bend to federal pressure. State legislatures then responded in support of districts that wished to resist. In the first few months of 2016, South Dakota, Tennessee, and North Carolina’s legislatures passed bills that prohibited transgender youth from using facilities consistent with their gender. In South Dakota and Tennessee, the governors vetoed the bills, preventing them from becoming law, but in March 2016, the governor of North Carolina approved his legislature’s bill, making it the first state to enact such a law. Just weeks later, in a separate controversy, the Fourth Circuit became the first court to hold that Title IX’s protections extended to transgender youth’s gender identity.

Grimm v. Gloucester County School Board

822 F.3d 709 (2016)

Floyd, Circuit Judge, joined by Davis, Senior Judge

At the heart of this appeal is whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity. Because this case comes to us after dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), the facts below are generally as stated in G.G.’s complaint.

G.G. is a transgender boy now in his junior year at Gloucester High School. G.G.’s birth-assigned sex, or so-called “biological sex,” is female, but G.G.’s457 gender identity is male. G.G. has been diagnosed with gender dysphoria, a medical condition characterized by clinically significant distress caused by an incongruence between a person’s gender identity and the person’s birth-assigned sex. Since the end of his freshman year, G.G. has undergone hormone therapy and has legally changed his name to G., a traditionally male name. G.G. lives all aspects of his life as a boy. G.G. has not, however, had sex reassignment surgery.

G.G. and his mother told school officials that G.G. was a transgender boy. The officials were [initially] supportive[,] took steps to ensure that he would be treated as a boy[, and] allowed G.G. to use the boys’ restroom.² G.G. used this restroom without incident for about seven weeks. G.G.’s use of the boys’ restroom, however, excited the interest of others in the community [who sought] to bar G.G. from the boys’ restroom.

[This led to a school board meeting where] Board Member Carla Hook proposed the following resolution:

Whereas the GCPS [i.e., Gloucester County Public Schools] recognizes that some students question their gender identities, and Whereas the GCPS encourages such students to seek support, advice, and guidance from parents, professionals and other trusted adults, and Whereas the GCPS seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.

[This policy proposal generated extensive community comments over the course of two board meetings. Community members referred to G.G. in highly offensive terms and asserted that he would violate others’ privacy, incite sexual assaults, and promote other boys sneaking into the girls’ bathroom. Some threatened to vote the Board out of office if they continued to allow G.G. to use the boys’ restroom. T]he Board voted 6-1 to adopt the proposed policy, thereby barring G.G. from using the boys’ restroom at school.

G.G. alleges that he cannot use the girls’ restroom because women and girls in those facilities “react[] negatively because they perceive[] G.G. to be a boy.” Further, using the girls’ restroom would “cause severe psychological distress” to G.G. and would be incompatible with his treatment for gender dysphoria. As a corollary to the policy, the Board [decided] to improve [the] general privacy for all students, including adding or expanding partitions between urinals in male restrooms, adding privacy strips to the doors of stalls in all restrooms, and constructing single-stall unisex restrooms available to all students. G.G. alleges that he cannot use these new unisex restrooms because they “make him feel even more stigmatized.…Being required to use the separate restrooms sets him apart from his peers, and serves as a daily reminder that the school views him as ‘different.’” G.G. further alleges that, because of this stigma and exclusion, his social transition is undermined and he experiences “severe and persistent458 emotional and social harms.” G.G. avoids using the restroom while at school and has, as a result of this avoidance, developed multiple urinary tract infections.

II.

Title IX provides: “[n]o person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. §1681(a). To allege a violation of Title IX, G.G. must allege (1) that he was excluded from participation in an education program because of his sex; (2) that the educational institution was receiving federal financial assistance at the time of his exclusion; and (3) that the improper discrimination caused G.G. harm.

Not all distinctions on the basis of sex are impermissible under Title IX. For example, Title IX permits the provision of separate living facilities on the basis of sex: “nothing contained [in Title IX] shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.” 20 U.S.C. §1686. The Department’s regulations implementing Title IX permit the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” 34 C.F.R. §106.33. The Department recently delineated how this regulation should be applied to transgender individuals. In an opinion letter dated January 7, 2015, the Department’s Office for Civil Rights (OCR) wrote: “When a school elects to separate or treat students differently on the basis of sex…a school generally must treat transgender students consistent with their gender identity.”

G.G., and the United States as amicus curiae, ask us to give the Department’s interpretation of its own regulation controlling weight pursuant to Auer v. Robbins, 519 U.S. 452 (1997). Auer requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute. Agency interpretations need not be well-settled or long-standing to be entitled to deference. They must, however, “reflect the agency’s fair and considered judgment on the matter in question.” An interpretation may not be the result of the agency’s fair and considered judgment, and will not be accorded Auer deference, when the interpretation conflicts with a prior interpretation, when it appears that the interpretation is no more than a convenient litigating position, or when the interpretation is a post hoc rationalization. Christopher v. Smithkline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (citations omitted).

The district court declined to afford deference to the Department’s interpretation of 34 C.F.R. §106.33. The district court found the regulation to be unambiguous because “[i]t clearly allows the School Board to limit bathroom access ‘on the basis of sex,’ including birth or biological sex.” The district court459 also found, alternatively, that the interpretation advanced by the Department was clearly erroneous and inconsistent with the regulation. The district court reasoned that, because “on the basis of sex” means, at most, on the basis of sex and gender together, it cannot mean on the basis of gender alone.

[O]ur analysis begins with a determination of whether 34 C.F.R. §106.33 contains an ambiguity. Section 106.33 permits schools to provide “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” 34 C.F.R. §106.33. “[D]etermining whether a regulation or statute is ambiguous presents a legal question, which we determine de novo.” We determine ambiguity by analyzing the language under the three-part framework set forth in Robinson v. Shell Oil Co., 519 U.S. 337 (1997). The plainness or ambiguity of language is determined by reference to (1) the language itself, (2) the specific context in which that language is used, and (3) the broader context of the statute or regulation as a whole. Id. at 341.

First, we have little difficulty concluding that the language itself—“of one sex” and “of the other sex”—refers to male and female students. Second, in the specific context of §106.33, the plain meaning of the regulatory language is best stated by the United States: “the mere act of providing separate restroom facilities for males and females does not violate Title IX.…” Third, the language “of one sex” and “of the other sex” appears repeatedly in the broader context of 34 C.F.R. §106 Subpart D, titled “Discrimination on the Basis of Sex in Education Programs or Activities Prohibited.” This repeated formulation indicates two sexes (“one sex” and “the other sex”), and the only reasonable reading of the language used throughout the relevant regulatory section is that it references male and female. Read plainly then, §106.33 permits schools to provide separate toilet, locker room, and shower facilities for its male and female students. By implication, the regulation also permits schools to exclude males from the female facilities and vice-versa.

Our inquiry is not ended, however, by this straightforward conclusion. Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading—determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity. It is not clear to us how the regulation would apply in a number of situations—even under the Board’s own “biological gender” formulation. For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual460 using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.

Because we conclude that the regulation is ambiguous as applied to transgender individuals, the Department’s interpretation is entitled to Auer deference unless the Board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute. An agency’s view need only be reasonable to warrant deference. Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 702 (1991) (“[I]t is axiomatic that the [agency’s] interpretation need not be the best or most natural one by grammatical or other standards. Rather, the [agency’s] view need be only reasonable to warrant deference.”).

Two dictionaries from the [relevant regulation] drafting era inform our analysis of how the term “sex” was understood at that time. The first defines “sex” as “the character of being either male or female” or “the sum of those anatomical and physiological differences with reference to which the male and female are distinguished.…” American College Dictionary 1109 (1970). The second defines “sex” as:

the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu[ally] genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness.…

Webster’s Third New International Dictionary 2081 (1971).

Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge. We conclude that the Department’s interpretation of how §106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”

461

Even a valid interpretation will not be accorded Auer deference where it conflicts with a prior interpretation, where it appears that the interpretation is no more than a convenient litigating position, or where the interpretation is a post hoc rationalization. [The Department’s interpretation is new, but only because the issue recently arose. Once it arose, the Department’s interpretation and enforcement of the regulation has been consistent. There is no indication that its interpretation is “merely a convenient litigating position” or a post hoc rationalization. Rather, it is consistent “with the existing guidances and regulations of a number of federal agencies—all of which provide that transgender individuals should be permitted access to the restroom that corresponds with their gender identities.³”] None of the Christopher grounds for withholding Auer deference are present in this case. [Thus,] the Department’s interpretation of its own regulation, §106.33, as it relates to restroom access by transgender individuals, is entitled to Auer deference and is to be accorded controlling weight in this case. We reverse the district court’s contrary conclusion and its resultant dismissal of G.G.’s Title IX claim.

In many respects, we are in agreement with the dissent. We agree that “sex” should be construed uniformly throughout Title IX and its implementing regulations. We agree that it has indeed been commonplace and widely accepted to separate public restrooms, locker rooms, and shower facilities on the basis of sex. We agree that “an individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts” are not involuntarily exposed.⁴ It is not apparent to us, however, that the truth of these propositions undermines the conclusion we reach regarding the level of deference due to the Department’s interpretation of its own regulations.

The Supreme Court commands the use of particular analytical frameworks when courts review the actions of the executive agencies. G.G. claims that he is entitled to use the boys’ restroom pursuant to the Department’s interpretation of462 its regulations implementing Title IX. We have carefully followed the Supreme Court’s guidance in Chevron, Auer, and Christopher and have determined that the interpretation contained in the OCR letter is to be accorded controlling weight. In a case such as this, where there is no constitutional challenge to the regulation or agency interpretation, the weighing of privacy interests or safety concerns⁵—fundamentally questions of policy—is a task committed to the agency, not to the courts.

Niemeyer, Circuit Judge, concurring in part and dissenting in part:

Accepting [a] new definition of the statutory term “sex,” the majority’s opinion, for the first time ever, holds that a public high school may not provide separate restrooms and locker rooms on the basis of biological sex. Rather, it must now allow a biological male student who identifies as female to use the girls’ restrooms and locker rooms and, likewise, must allow a biological female student who identifies as male to use the boys’ restrooms and locker rooms. This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. And, unwittingly, it also tramples on the very concerns expressed by G.G., who said that he should not be forced to go to the girls’ restrooms because of the “severe psychological distress” it would inflict on him and because female students had “reacted negatively” to his presence in girls’ restrooms. Surely biological males who identify as females would encounter similar reactions in the girls’ restroom, just as students physically exposed to students of the opposite biological sex would be likely to experience psychological distress. As a result, schools would no longer be able to protect physiological privacy as between students of the opposite biological sex.

The recent Office for Civil Rights letter, moreover, which is not law but which is the only authority on which the majority relies, states more than the majority acknowledges. In the sentence following the sentence on which the majority relies, the letter states that, to accommodate transgender students, schools are encouraged “to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities [as permitted by Title IX’s regulations].” This appears to approve the course that G.G.’s school followed when it created unisex restrooms in addition to the boys’ and girls’ restrooms it already had.

Title IX and its implementing regulations are not ambiguous. In recognition of physiological privacy and safety concerns, they allow schools to provide “separate living facilities for the different sexes,” 20 U.S.C. §1686, provided that the463 facilities are “proportionate” and “comparable,” 34 C.F.R. §106.32(b), and to provide “separate toilet, locker room, and shower facilities on the basis of sex,” again provided that the facilities are “comparable,” 34 C.F.R. §106.33.

Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females. An individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind. Indeed, the Supreme Court recognized, when ordering an all-male Virginia college to admit female students, that such a remedy “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex.” United States v. Virginia, 518 U.S. 515, 550 n.19 (1996).

Thus, Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes. This privacy concern is also linked to safety concerns that could arise from sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex. Indeed, the School Board cited these very reasons for its adoption of the policy, explaining that it separates restrooms and locker rooms to promote the privacy and safety of minor children, pursuant to its “responsibility to its students to ensure their privacy while engaging in personal bathroom functions, disrobing, dressing, and showering outside of the presence of members of the opposite sex. [That the school has this responsibility] is particularly true in an environment where children are still developing, both emotionally and physically.”

The realities underpinning Title IX’s recognition of separate living facilities, restrooms, locker rooms, and shower facilities are reflected in the plain language of the statute and regulations, which is not ambiguous. The text of Title IX and its regulations allowing for separation of each facility “on the basis of sex” employs the term “sex” as was generally understood at the time of enactment. Title IX was enacted in 1972 and the regulations were promulgated in 1975 and readopted in 1980, and during that time period, virtually every dictionary definition of “sex” referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions. Indeed, although the contemporaneous meaning controls our analysis, it is notable that, even today, the term “sex” continues to be defined based on the physiological distinctions between males and females. Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome. Thus, when the School Board assigned restrooms and locker rooms on the basis of biological sex, it was clearly complying precisely with the unambiguous language of Title IX and its regulations.

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NOTES AND QUESTIONS

1. Is Title IX’s prohibition on discrimination based on sex ambiguous? In what way? Is the Department of Education’s regulation allowing schools to provide “separate toilet, locker room, and shower facilities on the basis of sex” ambiguous?

2. Would a prohibition on sex discrimination that did not also protect against gender discrimination make sense? If gender discrimination is prohibited, must gender identity discrimination be prohibited as well?

3. What rationale does the court offer to justify the Department’s interpretation that “a school [that] elects to separate or treat students differently on the basis of sex…generally must treat transgender students consistent with their gender identity”?

4. Regardless of what Title IX regulations require or permit, does the board’s treatment of G.G. raise any additional constitutional concerns? What level of constitutional scrutiny should apply to the facts in G.G.? Under that scrutiny, could a school justify the exclusion of transgender students from restrooms consistent with their gender identity? Does the board have a legitimate or important interest in excluding transgender students from restrooms consistent with their gender identity?

5. Does the presence of a male transgender student, for instance, in the male restroom invade the privacy rights of other students? If such a right exists, how should a court balance that privacy right with the right of the transgender student to use the restroom?

6. Why does the court find that the provision of a unisex restroom was insufficient to comply with Title IX?

7. While Grimm was the first federal court to recognize the right of transgender youth to use facilities consistent with their gender identity, the Maine Supreme Court reached a similar result under its state law. The Maine Human Rights Act provides that

It is unlawful public accommodations discrimination, in violation of this Act…[f]or any public accommodation or any person who is the…superintendent, agent, or employee of any place of public accommodation to directly or indirectly refuse, discriminate against or in any manner withhold from or deny the full and equal enjoyment to any person, on account of…sexual orientation…any of the accommodations…[or] facilities…of public accommodation.…

5 Me. Rev. Stat. §4592. Based on this statute, the court issued a carefully crafted opinion. It wrote:

we emphasize that in this case the school had a program carefully developed over several years and supported by an educational plan designed to sensitively address Susan’s gender identity issues. The determination that discrimination is demonstrated in this case rests heavily on Susan’s gender identity and gender dysphoria diagnosis, both of which were acknowledged and accepted by the school. The school, her parents, her counselors, and her friends all accepted that Susan is a girl.

Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans465 developed in cooperation with the school and the accepted and respected diagnosis that are present in this case. Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice. Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly. Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the [Maine Human Rights Act].

Doe v. Reg’l Sch. Unit 26, 86 A.3d 600, 606-607 (2014).

Notwithstanding important victories like this, jurisdictions have been slower to explicitly prohibit discrimination based on gender identity and expression than they have been to prohibit discrimination based on sexual orientation. See generally Nat’l Ctr. for Transgender Equality, Discrimination–Anti-Discrimination Laws, http://transequality.org/Issues/discrimination.html (last visited Feb. 28, 2013) (noting that 91 jurisdictions, including 8 states, explicitly protect people based on gender identity and expression, but only 37 percent of Americans live in such jurisdictions). A few courts, however, have interpreted state sex discrimination laws to include transgender people. See, e.g., Dep’t of Fair Emp. & Hous. v. Marion’s Place, 2006 WL 1130912, FEHC Dec. No. 06-01 (Cal. Fair Emp. & Hous. Comm’n 2006); Morales v. ATP Health & Beauty Care, Inc., 2008 WL 3845294 (D. Conn. 2008); Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199 (Mass. Super. Ct. Oct. 11, 2000); Enriquez v. W. Jersey Health Sys., 777 A.2d 365 (N.J. Super. Ct. App. Div.), cert denied, 785 A.2d 439 (N.J. 2001); Tronetti v. TLC Healthnet Lakeshore Hosp., 2003 WL 22757935 (W.D.N.Y. 2003).

8. Some advocates have proposed another theory of relief for transgender students, arguing that gender identity disorder (GID) is a disability and should be protected by relevant disability statutes. This strategy has invoked a vigorous debate within the transgender community. See Jennifer Levi & Bennett Klein, Pursuing Protection for Transgender People through Disability Laws, in Transgender Rights 74-92 (Paisley Currah et al. eds., 2006) (noting that the word “disability” is medically centered and implies that transgender identity is an illness to be cured); Pooja S. Gehi & Gabriel Arkles, Unraveling Injustice: Race and Class Impact of Medicaid Exclusions of Transition-Related Health Care for Transgender People, 4 Sexuality Res. & Soc. Pol’y 7, 15-16 (2007) (arguing that reliance on medicalization to exercise rights and protections is problematic). GID is explicitly excluded from the two most important federal disability laws, the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq., and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. Most state disability rights laws either explicitly, or through judicial interpretation, exclude GID. Some state courts, however, have extended state disability protections to transgender people. See, e.g., Lie v. Sky Publ’g Corp., 15 Mass. L. Rptr. 412 (Mass. Super. Ct. 2002); Enriquez v. W. Jersey Health Sys., 777 A.2d 365 (N.J. Super. Ct. App. Div. 2001), cert denied, 785 A.2d 439 (N.J. 2001); Jean Doe v. Bell, 754 N.Y.S.2d 846 (N.Y. Sup. Ct. 2003); see also Jeanie J. Chung, Identity or Condition? The Theory and Practice of Applying State Disability Laws to Transgender Individuals, 21 Colum. J. Gender & L. 1 (2011) (examining the various ways state courts have addressed466 disability protection for transgender people and identifying important strategic considerations for litigators); Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), but Gender Identity Might, 15 Colum. J. Gender & L. 90, 104 n.81 (2006) (citing various circuit courts that have recognized disability protection for transgender litigants).

2. Dress Codes

Dress codes can also present challenges for transgender youth. School dress codes and assertions that a particular way of dressing is “disruptive” have been used to impose conformity with stereotypical gender roles and have resulted in transgender students receiving disciplinary action. Paisley Currah, Gender Pluralisms Under the Transgender Umbrella, in Transgender Rights 3, 7 (Paisley Currah et al. eds., 2006) (noting various cases in which schools have punished students for expressing themselves by wearing clothing traditionally worn by members of the gender with which they identify); Jennifer L. Greenblat, Using the Equal Protection Clause Post-VMI to Keep Gender Stereotypes Out of the Public School Dress Code Equation, 13 U.C. Davis J. Juv. L. & Pol’y 281 (2009). Of course, dress code policies may also burden First Amendment expressive activity, a topic discussed at length in the free speech chapter. See Zenobia V. Harris, Breaking the Dress Code: Protecting Transgender Students, Their Identities, and Their Rights, 13 Scholar 149 (2010).

3. Athletic Opportunities

Due to the organization of sports based on sex and gender, transgender students are often forced to choose between participating in sex-segregated teams inconsistent with their gender identity or not participating at all. The exclusion of transgender students from teams in accord with their gender identities is justified by arguments that inclusion would create an “unfair disadvantage,” focusing on the concerns over transgender women (born male, but identified as female) playing on girls’ teams. Civil rights advocates counter, arguing that such assertions are premised on transphobic notions that transgender women are not “real” women and that being born male gives them an unfair advantage over those born female. These assertions seemingly rely on stereotypes and disregard the wide variation in size, strength, and athleticism present within genders. Studies have largely discredited the notion that transgender women would have an unfair advantage and that permitting transgender women to participate in female sports would encourage boys to pretend to be transgender. See generally Pat Griffen & Helen J. Carroll, On the Team: Equal Opportunity for Transgender Student Athletes (2010).

Prior to 2011, the NCAA had no official policy governing transgender student participation, but generally defined an athlete’s sex based on governmental documents such as birth certificates, driver’s licenses, and taxes. Since each state has different requirements and procedures for the modification of government467 documents to conform to one’s gender identity (often requiring one to undergo sex reassignment surgery prior to the modification), a school in one state can field a women’s team with a member whose natal gender was not female, while a school in another could not, both consistent with NCAA policy. Erin E. Buzuvis, Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics, 21 Seton Hall J. Sports & Ent. L. 1, 24 (2011). In 2011, the NCAA approved a final policy that allows “transgender student-athletes to participate in sex-separated sports activities so long as the athlete’s use of hormone therapy is consistent with the NCAA policies and current medical standards.” Marta Lawrence, Transgender Policy Approved, NCAA (Sept. 13, 2011), http://www.ncaa.org/wps/wcm/connect/public/NCAA/Resources/Latest+News/2011/September/Transgender+policy+approved.

Additionally, state interscholastic athletic associations have adopted different standards, some requiring surgery prior to participation in a team of one’s gender identity, and others requiring a hearing to determine whether the gender identity is “bona fide.” Buzuvis, supra, at 25. Since advocates and the NCAA have been relatively effective in delineating best practices for schools to address issues related to transgender students in sports, more and more schools, school districts, states, and interscholastic athletic associations have begun to adopt trans-inclusive policies.

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7 This dispute appears to be the first case under Title IX challenging an education institution admission decision based on direct evidence of individual disparate treatment, as opposed to challenges based on admissions policies that are alleged to favor one group of people over another.

8 In Dr. Beech’s own affidavit, she admits that she takes family responsibilities into account when evaluating both male and female applicants. Although Dr. Beech recommended that Ms. Tingley-Kelley be interviewed, which indicates that she thought Ms. Tingley-Kelley had the potential to be admitted, it is still possible that her notations about Ms. Tingley-Kelley’s parental responsibilities were reviewed by other members of the Admissions Committee and played a role in the ultimate denial of Ms. Tingley-Kelley’s applications.

11 Had Ms. Tingley-Kelley only presented circumstantial evidence of “sex-plus” discrimination, she may have then needed to demonstrate that she was treated unfavorably as compared to the corresponding subclass of men in proving her case, though the case law is not settled in this respect. Because Ms. Tingley-Kelley presents direct evidence of discrimination, the Court need not evaluate her circumstantial case.

1 Several amici have urged that diversity in educational opportunities is an altogether appropriate governmental pursuit and that single-sex schools can contribute importantly to such diversity. Indeed, it is the mission of some single-sex schools “to dissipate, rather than perpetuate, traditional gender classifications.” We do not question the Commonwealth’s prerogative evenhandedly to support diverse educational opportunities. We address specifically and only an educational opportunity recognized by the District Court and the Court of Appeals as “unique,” an opportunity available only at Virginia’s premier military institute, the Commonwealth’s sole single-sex public university or college.

6 The various studies and statistics relied upon by both defendants’ expert and plaintiff’s expert suggest that at age 13 the average female tends to be slightly taller and heavier than the average male of that age, although there is a wide range of variance amongst all the members in both sexes. [But] the average boy at that age has a very slightly higher ratio of lean body mass to fat mass, and a somewhat higher ratio of lean body mass to height, has heavier bones, may have somewhat more speed and upper body strength, and has somewhat better motor coordination. After age 13 these differences begin to widen appreciably, and by the time the later teens are reached the “average” male has not only greatly widened the gap in terms of lean body mass ratio, but has also considerably surpassed the “average” female in terms of height and total body weight.

All of the above physiological factors are said to have a bearing on one’s physical ability to compete in a sport[, but other factors such as conditioning, desire and intelligence are also involved. Thus, the statistics regarding average males and females may be skewed by the fact “that conditioning can have a bearing on lean body mass ratios” and females, due to societal roles, “have in the past been less physically active than males.”]

7 In fact, according to one construction which has been given the regulations under Title IX, the School District might already be required to let boys participate on the volleyball team, regardless whether girls play football. See Gomes v. Rhode Island Interscholastic League, 469 F. Supp. 659 (D.R.I.1979), vacated as moot, 604 F.2d 733 (1st Cir. 1979). Contra, Mularadelia v. Haldane Cent. Sch. Bd., 74 App. Div. 2d 248, 427 N.Y.S.2d 458 (1980).

12 There are apparently no studies which have compared the incidence of injuries as between males and females playing football, or any other contact sport at age 13, either on segregated teams or co-educational teams. The potential for injury, however, at least in contact sports, is said to be related to the physical characteristics mentioned in [the previous footnote], particularly lean body mass ratios. If that is so, to that extent perhaps the “average” boy at age 13 will have somewhat less potential for injury in football than the “average” girl at age 13. In addition, girls who have reached sexual maturity (on the average between 12 and 13 years, although in some instances much later) begin to develop a wider hip structure, and the angle between the hip and the knee (called the “Q angle”) increases, with resulting potential for increased knee injury. How significant that increased “Q angle” is, and just what its real potential for increased knee injury in football might be, was a subject disputed by Dr. Falls and Dr. Burke.

2 G.G. does not participate in the school’s physical education programs. He does not seek here, and never has sought, use of the boys’ locker room. Only restroom use is at issue in this case.

3 We disagree with the dissent’s suggestion that the result we reach today renders the enforcement of separate restroom facilities impossible because it “would require schools to assume gender identity based on appearances, social expectations, or explicit declarations of identity.” Post at 65. Accepting the Board’s position would equally require the school to assume “biological sex” based on “appearances, social expectations, or explicit declarations of [biological sex].” Certainly, no one is suggesting mandatory verification of the “correct” genitalia before admittance to a restroom. The Department’s vision of sex-segregated restrooms which takes account of gender identity presents no greater “impossibility of enforcement” problem than does the Board’s “biological gender” vision of sex-segregated restrooms.

4 We doubt that G.G.’s use of the communal restroom of his choice threatens the type of constitutional abuses present in the cases cited by the dissent. For example, G.G.’s use—or for that matter any individual’s appropriate use—of a restroom will not involve the type of intrusion present in Brannum v. Overton Cty. Sch. Bd., 516 F.3d 489, 494 (6th Cir. 2008) (involving the videotaping of students dressing and undressing in school locker rooms), Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 604 (6th Cir. 2005) (involving the indiscriminate strip searching of twenty male and five female students), or Supelveda v. Ramirez, 967 F.2d 1413, 1416 (9th Cir. 1992) (involving a male parole officer forcibly entering a bathroom stall with a female parolee to supervise the provision of a urine sample).

5 The dissent accepts the Board’s invocation of amorphous safety concerns as a reason for refusing deference to the Department’s interpretation. We note that the record is devoid of any evidence tending to show that G.G.’s use of the boys’ restroom creates a safety issue. We also note that the Board has been, perhaps deliberately, vague as to the nature of the safety concerns it has—whether it fears that it cannot ensure G.G.’s safety while in the restroom or whether it fears G.G. himself is a threat to the safety of others in the restroom. We are unconvinced of the existence of danger caused by “sexual responses prompted by students’ exposure to the private body parts of students of the other biological sex.” Post at 58. The same safety concern would seem to require segregated restrooms for gay boys and girls who would, under the dissent’s formulation, present a safety risk because of the “sexual responses prompted” by their exposure to the private body parts of other students of the same sex in sex-segregated restrooms.

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A. INTRODUCTION: THE HISTORY OF STUDENTS WITH DISABILITIES IN SCHOOLS AND MODERN STATUTORY PROTECTIONS

As recognized by the U.S. Congress, “disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” 20 U.S.C. §1400(c)(1) (2006). But prior to the 1970s, disabled students were often entirely excluded from public schools, were warehoused in segregated schools for disabled students, or were not receiving appropriate educational services.

The recognition of African American students’ right to equal educational opportunity in Brown v. Board of Education laid the groundwork for disabled children to attain significant educational rights. Advocates for the disabled seized on the rationale of Brown to argue that children with disabilities were also entitled to equal access to the public schools. Two landmark decisions, Pennsylvania Ass’n for Retarded Children (PARC) v. Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972), and Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D.D.C. 1972), created the framework for modern statutes dealing with disabled students.

In PARC, plaintiffs sought to declare Pennsylvania’s statutes excluding retarded students from public education unconstitutional in violation of equal protection and due process protections. Relying on Brown, the court found the plaintiffs’ equal protection argument colorable because “the state, having undertaken to provide public education to some children (perhaps all children) [has no rational basis] to deny it to plaintiffs entirely.” 343 F. Supp. at 297. The court held that mentally retarded students should be provided access to a free public education and should be placed in regular classrooms when possible. The district court in Mills extended this doctrine to all students with disabilities, holding470 that they must be provided with a free and adequate public education. “The defendants are required by the Constitution of the United States…to provide a publicly-supported education for these ‘exceptional’ children. Their failure to fulfill this clear duty to include and retain these children in the public school system, or otherwise provide them with publicly-supported education, and their failure to afford them due process hearing and periodical review, cannot be excused by the claim that there are insufficient funds.” 348 F. Supp. at 876.

These landmark decisions are more notable for their historical importance than their constitutional underpinnings. They laid the historical and theoretical foundation for the expansive statutory protections for students with disabilities that Congress would pass shortly thereafter. In 1973, Congress enacted §504 of the Rehabilitation Act prohibiting discrimination against handicapped persons in programs receiving federal funds. In 1990, the antidiscrimination protections of §504 were extended to many areas of the private sector, such as employment, public accommodations, and transportation through the Americans with Disabilities Act (ADA).

The antidiscrimination mandate of §504 set the stage for the more significant affirmative obligations of schools toward students with disabilities mandated in the Education for All Handicapped Children Act of 1975 (EAHCA). The EAHCA “incorporated the major principles of the right to education cases,” particularly the PARC and Mills decisions, and relied on Brown as establishing the principle of equal educational opportunity. S. Rep. No. 94-168, at 6, 8 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1430, 1432; Bd. of Educ. v. Rowley, 458 U.S. 176, 180 n.2 (1982). The EAHCA was reauthorized and renamed numerous times, most recently in 2004 as the Individuals with Disabilities Education Improvement Act (IDEA). Pub. L. No. 108-446, 118 Stat. 2647, §601(c)(12) (codified as amended at 20 U.S.C. §§1400-1482). The IDEA requires that states provide significant substantive rights and procedural protections to students with disabilities in exchange for federal funding. Congress promised to fund 40 percent of the excess costs of educating eligible students. The IDEA is the second largest federal program in education, providing states and districts with approximately $12 billion each year to serve about 6 million children with disabilities nationwide. While this figure is large, Congress has never fully funded the IDEA, and it covers less than 20 percent of the excess cost of educating students with disabilities.

These three laws—§504, the ADA, and the IDEA—provide the primary legal protections available for students with disabilities. Of these three, the IDEA has the largest impact on public schools because of the complex system of legal rights created by the statute, implementing regulations, and jurisprudence. This chapter focuses primarily on the IDEA because of this complexity and because schools are frequently involved in litigation concerning their IDEA obligations.

B. ELIGIBILITY FOR PROTECTION

Whether a student is eligible for protection under the IDEA, §504, or the ADA is determined by statutory definitions. This section begins by explaining these471 statutory definitions and ends with one of the most troubling and long-standing eligibility issues—minority overrepresentation in special education.

1. Statutory and Regulatory Requirements

A quick reading of the IDEA, its regulations, and its predecessor statutes may lead to the conclusion that all children with medically certified disabilities are IDEA eligible because the law is replete with statements that “all children with disabilities” should be served. Despite the sheer quantity of references to “all” disabled children, and the rhetoric in the case law and legislative history, it is beyond dispute that not all children diagnosed with disabilities are IDEA eligible. Rather, an eligible “child with a disability” is defined as a child

(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance…, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and

(ii) who, by reason thereof, needs special education and related services.

20 U.S.C.A. §1401(3)(A) (2012); 34 C.F.R. §300.8(c)(1)-(13) (2015). These apparently simple provisions are in fact among the most complex requirements of the IDEA.

The first requirement is that a child must have an enumerated disability. But a disability is not qualifying and eligibility does not attach, despite a medical diagnosis, unless the disability “adversely affects a child’s educational performance.” Accordingly, to fulfill the first prong of eligibility, a child must show the existence of an enumerated disability and that the disability adversely affects his or her educational performance.

The second prong requires that the child must need special education and related services. The IDEA defines “special education” as the adaptation of the content, methodology, or delivery of instruction to address a child’s unique needs and to ensure access to the general curriculum. 34 C.F.R. §300.39(b)(3). “Related services,” on the other hand, are “transportation, and such developmental, corrective, and other supportive services…as may be required to assist a child with a disability to benefit from special education.…” 20 U.S.C.A. §1401(26). Specific examples include “speech-language pathology and audiology services,…psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services,…counseling services, including rehabilitation counseling, orientation and mobility services, and medical services.…” If a child needs only “related services” and not “special education,” then the child is not eligible. 34 C.F.R. §300.8(a)(2)(i); Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 894 (1984).

Not all children with medically diagnosed impairments will satisfy this two-part eligibility test and will not be eligible for IDEA services. Many chronic health problems such as cancer and diabetes do not fit within the enumerated disability categories. Other children may have an enumerated disability but not need472 special education and related services. A child with cystic fibrosis may need respiratory therapy, a child with spina bifida may need catheterization services, and a child with an orthopedic impairment may need mobility services, but these services are not “special education,” and these children are not eligible under the IDEA.

But children who are not eligible under the IDEA may still receive protection under §504 and the ADA, which prohibit discrimination against “qualified individuals with a disability.” Both §504 and the ADA provide that “disability” means, with respect to an individual, “(A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. §12102(2) (2006); 29 U.S.C. §705(20)(B) (2006). Learning is considered a major life activity. The statutes both define a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodations…or the provision of auxiliary aides and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. §12131; 34 C.F.R. §104.3(l)(3).

Unlike the IDEA, eligibility is not conditioned on a need for special education and related services. Instead, a qualified individual with a disability is a person whose disability can be reasonably accommodated. This broad definition is the reason many more children are §504 and ADA eligible than are IDEA eligible. As discussed below, whether a child is eligible under §504 or the IDEA is critical because the IDEA demands a higher level of services and procedural protections than §504 or the ADA.

a. Educational Performance

IDEA eligibility initially hinges on the existence of a disability that adversely affects the child’s “educational performance,” yet the IDEA does not define the term. Courts are divided on its meaning. The next case and the following notes exemplify the broad and narrow interpretations of “educational performance.”

Doe ex rel. Doe v. Board of Education of Connecticut

753 F. Supp. 65 (D. Conn. 1990)

Ellen B. Burns, Chief Judge.

The plaintiff attended regular classes and participated in the gifted program in Darien public schools from kindergarten through fifth grade. He did well academically in school during this time, although there is evidence in the record from which to conclude that he was sometimes difficult. These behavior problems do not appear to have been severe. However, in January, 1987 in his sixth grade, John [refused to go to school and] had emotionally deteriorated to the extent that his parents found it necessary to hospitalize him. His condition at this473 time [was] depressed and violent. [On release, John’s parents placed him at the Grove School, a residential treatment facility, and sought tuition reimbursement from the district. The district refused, arguing that John was not a qualified student with a disability. The parents filed for an administrative hearing with a due process officer contesting the eligibility determination, and the hearing office ruled that John was not IDEA eligible.]

The plaintiff claims that he was a “socially and emotionally maladjusted child,” and an “exceptional child,” in need of special education at a residential facility. At the hearing, the plaintiff offered testimony from his treating psychiatrist at the Grove School and the director of the Grove School to demonstrate his emotional disturbance and his need for a residential placement. His psychiatrist, Dr. Tessler, testified that in his opinion the plaintiff was an exceptional child and a socially and emotionally maladjusted child. He testified that John felt very pressured and could be aggressive and destructive to other children. He further testified that the diagnosis of major depression applied to the plaintiff. Dr. Tessler testified that a residential facility like the Grove School was essential for John. Mr. Chorney, the Director of the Grove School, similarly testified to John’s need for a residential placement. He described the plaintiff’s temper outbursts at the Grove School, which progressively became less frequent. As previously stated, John’s parents both testified to the difficulties he had before being hospitalized. John’s records from the Grove School indicate that, although he did well academically, he had some behavior problems during the 1987–88 school year. Teacher comments indicate that he was at times provocative, argumentative, distracted, uncooperative, and made self-deprecating comments.

Despite the evidence of the plaintiff’s behavioral difficulties, this court concludes for the following reasons that he was not a handicapped child entitled to special education. The plaintiff had some emotional difficulties, but these difficulties did not adversely affect his educational performance as required by federal and state law. The plaintiff’s academic performance (both his grades and his achievement test results) before, during, and after his hospitalization were satisfactory or above. In addition, two of the plaintiff’s sixth grade teachers from Darien testified that they did not notice the plaintiff had any behavior problems, other than some problems with organization. In fact, [the] psychological evaluation states “it does not appear that [John’s] behavioral difficulties in school have contributed to academic underachievement, the very preoccupation which consumes his conscious ideation.” On cross-examination at the hearing, [John's doctor] agreed with this conclusion. [He] further stated on cross-examination that “[u]p to now, he has been able to do remarkably well [in school] despite his depression.” Mr. Chorney similarly testified on cross-examination that John liked school, liked succeeding, and that his emotional problems had not significantly interfered with his academics. [Another doctor] stated that he did not believe John’s behavior was interfering with his learning. In sum, there was sufficient evidence presented to the state hearing officer from which she reasonably concluded that the plaintiff’s education was not significantly impeded or adversely affected by his behavior problems and that he was therefore not entitled to special education. Hence, the hearing officer did not474 misapply Connecticut law, nor did the hearing officer’s decision deny the plaintiff his right to a “free and appropriate education.”

NOTES AND QUESTIONS

1. Other approaches. In Mary P. v. Illinois State Board of Education, 919 F. Supp. 1173 (N.D. Ill.), amended by 934 F. Supp. 989 (N.D. Ill. 1996), a student with a speech impairment was performing at an age-appropriate educational level but had difficulty communicating. The Level 2 hearing officer “determined that an adverse effect on educational performance must include an effect on age-appropriate academic performance. In essence, he found the two terms synonymous.” Id. at 1176. The district court overturned this decision and held:

“Educational performance” means more than a child’s ability to meet academic criteria. It must also include reference to the child’s development of communication skills, social skills, and personality, as the Code, itself, requires. Whether the balance of these factors tips towards eligibility depends on the manner in which the specific disability afflicts the student. Today, the court simply holds that a child whom experts determine suffers from a speech impairment so severe as to inhibit his ability or desire to communicate with his teachers and peers meets the criteria of “speech impairment” which “adversely affects the child’s educational performance”…and, thus, is a “child with a disability.” Accordingly, the court finds that Michael is “a child with a disability” and eligible for services under the IDEA.

Id. at 1180-1181.

2. Different standards or different facts? Did the Mary P. and Doe courts reach different conclusions because one dealt with a student’s inability to effectively communicate and the other dealt with a student’s social deficits and ability to attend school? Put differently, is communication essential to educational performance, but socialization and attendance are not? Courts and hearing officers have held in contexts other than speech language impairments that “educational” performance includes more than just academic performance. For a summary of cases defining educational performance, see Robert A. Garda, Jr., Untangling Eligibility Requirements Under the Individuals with Disabilities in Education Act, 69 Mo. L. Rev. 441 (2004).

3. Sources for defining educational performance. The IDEA expressly allows states to define “educational performance” for students with disabilities. In J.D. ex rel. J.D. v. Pawlet School District, 224 F.3d 60 (2d Cir. 2000), the Second Circuit denied eligibility to a child having “difficulty with interpersonal relationships and negative feelings” because these were not included in Vermont’s regulations defining “educational performance” for students with disabilities. But what if the state does not define “educational performance” in its regulations regarding students with disabilities? What sources should be consulted to determine the purposes of education? In Doe and Mary P., the courts seem to impose their own views of what should and should not be part of “educational performance.” Some decision makers use the dictionary to define “educational performance,” In re Kristopher H., 507 EHLR 183, 187 (Wash. SEA 1985), while others attempt to glean a federal definition from the evaluation provisions of475 the IDEA, Greenland Sch. Dist. v. Amy N., No. CIV. 02-136-JD, 2003 WL 1343023 (D.N.H. Mar. 19, 2003); Q.W. v. Bd. Of Educ. Of Fayetteville County, 630 Fed. Appx. 580 (6th Cir. 2015) (holding that high functioning autistic student was not eligible, even though “educational performance” encompasses more than academic achievement, because student’s poor at-home behavior did not occur at school). Should courts be attempting to define the purposes of education?

b. “Need” Special Education

Once it is established that a child has an enumerated disability, the issue becomes whether “by reason thereof, the child needs special education and related services.” The IDEA contains no explicit guidelines for determining whether a student with an impairment needs special education, and decision makers are divided on the issue. Many authorities find that a child “needs” special education merely because the child can benefit from it. See, e.g., Conrad Weiser Area Sch. Dist. v. Dep’t of Educ., 603 A.2d 701, 702, 705 (Pa. Commw. Ct. 1992). This can result in high-performing gifted children being found eligible despite outperforming their nondisabled peers. Benjamin R., 508 EHLR 183, 185 (Mass. SEA 1986). But most authorities reject this benefit standard and instead consider the child’s current performance level when ascertaining whether a child “needs” special education. These authorities diverge, however, on whether a child must be failing before a “need” is found, or whether a child passing from grade to grade but performing below average can be found in “need” of special education. For example, in Kelby v. Morgan Hill Unified School District, 959 F.2d 240, 241 (9th Cir. 1992) (unpublished table opinion), available at 1992 WL 67857, the court denied eligibility to a child with “poor grades, behavior problems and inconsistent work habits” because the child was passing from grade to grade. But in Blazejewski ex rel. Blazejewski v. Board of Education of Allegany Central School District, 560 F. Supp. 701, 705 (W.D.N.Y. 1983), the court found the child eligible despite passing from grade to grade because “he is achieving rather low marks in certain basic courses [and]…he lacks many of the basic survival skills needed to function in the outside world.” Should a child that can benefit from special education fulfill the “need” requirement?

c. “Special Education”

Many decision makers ignore the requirement that a child must need “special education and related services” to be IDEA eligible and presume that a disability that adversely affects educational performance requires remediation through “special education.” See, e.g., Muller v. East Islip Union Free Sch. Dist., 145 F.3d 95, 100 (2d Cir. 1998). This presumption is incorrect because a child’s disability may often be appropriately addressed by services that are not “special education.” Children with enumerated disabilities often need only “related services” or “accommodations” to address their needs and are not eligible for services under the IDEA. But the broad and ambiguous definition of “special476 education”—“adapting” of the “content, methodology or delivery of instruction” to “address the unique needs of the child” and “ensure access of the child to the general curriculum”—leads to inconsistency in its application. Many courts and hearing officers find that any modification to content, no matter how slight, is “special education,” while others find children in need of only minor curriculum modifications provided to nondisabled students are not eligible. Compare Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1375 (8th Cir. 1996), with Mountain Empire Unified Sch. Dist., 36 IDELR 29 (Cal. SEA 2001). Decision makers also cannot agree on whether modified assignments are an adaptation to teaching method and therefore “special education.” Compare Greenland Sch. Dist. v. Amy N., No. Civ. 02-136-JD, 2003 WL 1343023, at *8 (D.N.H. 2003), aff’d on other grounds, 358 F.3d 150 (1st Cir. 2004), with Long Beach Unified Sch. Dist., 33 IDELR 113, 119 (Cal. SEA 2000). Authorities subscribing to a broad definition—that any adaptation to the general education environment qualifies—find support in the definition of “special education,” which suggests that any adaptation of content, method, or delivery is special education. Decision makers adopting a narrow view—that only significant and unique adaptations qualify—find support in the definition of “special education,” which requires that the adaptations be made to meet the unique needs of the child, as opposed to the generic needs of all students.

PROBLEM

Joe is an eighth-grade student with a medical diagnosis of Attention Deficit-Hyperactivity Disorder (ADHD). As a result of his ADHD, Joe has difficulty socializing with his peers and teachers and following instructions, particularly in group projects. He also acts out occasionally and must be removed from the classroom. Joe has missed several days of school due to the high stress levels caused by his classroom environment. Despite these problems, Joe has passed from grade to grade with mostly C’s. Joe’s doctor believes Joe needs counseling services, small-group instruction, corrective reading instruction, a behavior management plan for when Joe acts out in class, and extra assistance in group projects. Is Joe an eligible “child with a disability” entitled to receive services under the IDEA?

2. Minority Overrepresentation in Special Education

While Brown v. Board of Education laid the foundation for significant advances in the rights of minorities and students with disabilities, it also institutionally linked race and disability. As Daniel Losen and Professor Kevin Welner explain:

Once desegregation began in earnest…schools experienced a wave of second generation discrimination taking the form of tracking (also known as ability grouping), abuse of expulsions and suspensions, and special education placement in substantially separate classrooms. Early desegregation opinions reported widespread abuse involving minority students with477 average and above-average IQ scores being relegated to isolated classes for mentally retarded students. This use of racially discriminatory special education placement to circumvent Brown’s mandate relied on at least two pervasive normative beliefs: the stereotypical belief of white intellectual superiority, and a well-grooved pattern of paternalism and animus toward people with disabilities. The predictable consequence of these beliefs was that many special education programs existed as segregated ghettos within public schools.

Daniel J. Losen & Kevin G. Welner, Disabling Discrimination in Our Public Schools: Comprehensive Legal Challenges to Inappropriate and Inadequate Special Education Services for Minority Children, 36 Harv. C.R.-C.L. L. Rev. 407, 434 (2001).

The practice of tracking and its impact on minorities was the issue in Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), a case that predated the statutory protections for students with disabilities. In Hobson, African American schoolchildren challenged the use of a “tracking,” or ability-grouping system, wherein African American students dominated the lower tracks and white students were concentrated in the higher tracks. Judge Skelly Wright held that the racially disproportionate placement of African American students in the lower special education tracks denied these students equal educational opportunity. The court found that the standardized aptitude tests used to place students into the tracks were culturally biased and produced misleading and inaccurate test scores when given to poor African American students because the scores reflected the psychological impact of daily racism they experienced and not actual abilities. The court rejected implicit arguments of racial inferiority and found that the high rates of placement in educable mentally retarded (EMR) was the result of external forces of discrimination, not disabilities within the students themselves. The defendants argued that using standardized tests to place students in EMR classes enabled them to tailor educational programs to the individual learning needs of their students. The court gave little weight to this purported justification, finding instead that placement in the lower tracks limited the educational opportunities available to African American students.

Congress recognizes that minority overrepresentation in special education continues to be an intractable problem. 20 U.S.C. 1400(12)(A-E). Based on the most recent available data, American Indian/Alaska Native students were 1.56 times more likely to be served under the IDEA than students in all other racial/ethnic groups combined, and African American students were 1.46 times more likely. Asian/Pacific Islander students, white students, and Hispanic students were less likely to be served under the IDEA than students in all other racial/ethnic groups combined (0.51, 0.89, and 0.93, respectively). U.S. Dep’t of Educ., 30th Annual Report to Congress in the Implementation of IDEA (2008). Digging deeper into the statistics reveals more interesting trends. African Americans are only slightly disproportionately represented in the low-incidence disabilities—hearing impairments, visual impairments, orthopedic impairments, autism, traumatic brain injury, and other health impairments. These categories make up less than 2 percent of the overall IDEA-eligible population. These medical model or “nonjudgment” disabilities are clearly identifiable disorders subject to an objective and accurate diagnosis.

Rather, African Americans are disproportionately represented in the high-incidence categories of intellectual disabilities, severe emotional disturbance,478 specific learning disability, and developmental delay. White students are underrepresented in these high-incidence categories, while Hispanics are overrepresented in the specific learning disability and intellectual disability categories, but underrepresented in the emotional disturbance category. The learning disability (LD) category requires special mention because roughly 45 percent of IDEA- eligible students fall under this category. African American students are 1.46 times more likely to be labeled LD than students in all other racial/ethnic groups and Hispanics are 1.19 more likely, whereas whites are only 0.77 times as likely and Asian/Pacific Islanders are 0.39 times as likely. LD, and all the high-incidence disabilities, are “social system” or “judgmental” disabilities that are not biologically based; there is no uniform test to determine their presence or agreement on how to diagnose them, and their definitions are open to broad discretion in application.

While there is general agreement as to the existence and nature of minority overrepresentation in special education, particularly African American overrepresentation, there is great controversy about its causes. This was the primary dispute in Hobson: whether African Americans were not “overrepresented” but instead had a higher incidence of actual disability or whether testing bias, teacher bias, and poor education were the primary reasons for overrepresentation. This issue has proven timeless, as the debate still rages over the causes of minority overrepresentation in special education. See, e.g., Morgan et.al., Minorities are Disproportionately Underrepresented in Special Education: Longitudinal Evidence Across Five Disability Categories, Educational Researcher (June 24, 2015) (finding that when minority children’s greater exposure to factors that increase the risk for disabling condition are taken into account, minority students are underrepresented in special education).

a. Bias in Testing

Standardized testing, particularly IQ tests, continue to play a prominent role in the identification of children as disabled under the IDEA. In the next case, the court invalidated California’s use of IQ tests to place students in classes for the mentally retarded because it led to African American overrepresentation in the classes.

Larry P. v. Riles

793 F.2d 969 (9th Cir. 1984)

Poole, Circuit Judge:

The State Superintendent of Public Instruction appeals a decision holding that IQ tests used by the California school system to place children into special classes for the educable mentally retarded (E.M.R.) violated [Title VI of the Civil Rights Act, the Rehabilitation Act, and the Education for All Handicapped Children Act] and the equal protection clauses of the United States and California Constitutions. The district court enjoined the use of non-validated IQ tests, and479 ordered the state to develop plans to eliminate the disproportionate enrollment of black children in E.M.R. classes. We affirm on the statutory grounds and reverse on the federal and state constitutional issues.

II. Facts

In the mid-60’s California created programs for several categories of students with educational problems. The “educable mentally retarded” (E.M.R.) Program was for schoolchildren of retarded intellectual development who are considered incapable of being educated through the regular educational program, but who could benefit from special educational facilities to make them economically useful and socially adjusted. The “trainable mentally retarded” (T.M.R.) category was for children with more severe retardation than educable mentally retarded.

The E.M.R. classes are for children who are considered “incapable of learning in the regular classes,” and the E.M.R. curriculum “is not designed to help students learn the skills necessary to return to the regular instructional program.” The E.M.R. classes are designed only to teach social adjustment and economic usefulness. “The [E.M.R.] classes are conceived of as ‘dead-end classes,’ ” and a misplacement in E.M.R causes a stigma and irreparable injury to the student.

From 1968 until trial in 1977 black children have been significantly overenrolled in E.M.R. classes. For example, in 1968-69, black children were about 9% of the state school population, yet accounted for 27% of the E.M.R. population.

These apparent overenrollments could not be the result of chance. For example, there is less than a one in a million chance that the overenrollment of black children and the underenrollment of non-black children in the E.M.R. classes would have resulted under a color-blind system. To explain this overenrollment, the defendants proffered a theory that there is a higher incidence of mental retardation among the black population. The district court found that this theory fails to account for the problem, because even “if it is assumed that black children have a 50 percent greater incidence of this type of mental retardation, there is still less than a one in 100,000 chance that the enrollment could be so skewed towards black children.”

On the average, black children score fifteen points, or one standard deviation, below white children on standardized intelligence test. Thus “approximately two percent of the total population fall below the [E.M.R. cutoff], while about 15 percent of black children fall below that level.”

The court found that “the tests were never designed to eliminate cultural biases against black children; it was assumed in effect that black children were less ‘intelligent’ than whites. The tests were standardized and developed on all-white population, and naturally their scientific validity is questionable for culturally different groups.” Since the 1920’s it has been generally known that black persons perform less well than white persons on the standardized intelligence tests. IQ tests had been standardized so that they yielded no bias because of sex. For example, when sample tests yielded different scores for boys and girls,480 the testing experts assumed such differences were unacceptable and modified the tests so that the curve in the standardization sample for boys and girls was identical. No such modifications on racial grounds has ever been tried by the testing companies. The district court noted that “the experts have from the beginning been willing to tolerate or even encourage tests that portray minorities, especially blacks, as intellectually inferior.” The district court found the assumptions underlying the genetic argument highly suspect, and in any event that the defendants “were unwilling to admit any reliance on [this theory] for policy-making purposes.”

The second theory is the socioeconomic argument, which theorizes that because of blacks’ lower socioeconomic status, they are at a greater risk for all kinds of diseases due to malnutrition and poor medical attention. The district court found that the facts did not support this theory, since it did not explain why more severe mental retardation, e.g. that consistent with placement into classes for the trainable mentally retarded children, does not occur in greater proportions among blacks and poorer sections of the population.

The district court found that the appellants failed to show that the IQ tests were validated for blacks with respect to the characteristics consistent with E.M.R. status and placement in E.M.R. classes, i.e., that the defendants failed to establish that the IQ tests were accurate predictors that black elementary schoolchildren who scored less than 70 were indeed mentally retarded.

The district court found that alternatives to IQ testing for E.M.R. placement have been in effect since the state moratorium on IQ testing in 1975. These procedures, in which schools take more time and care with their assessments for E.M.R. classification and rely more on observational data, are less discriminatory than under the IQ-centered standard.

The district court found that defendants were guilty of intentional discrimination in the use of the IQ tests for E.M.R. placement. The court based this determination on the facts that the historical background of the IQ tests shows cultural bias; the adoption of the mandatory IQ testing requirement in 1969 was riddled with procedural and substantive irregularities, in which no outside sources were consulted by the State Board and the question of bias was never considered, even though the officials were well aware of the bias and disproportionate placement problems caused by the IQ tests (this problem having been addressed in a legislative resolution); the defendants’ “complete failure to ascertain or attempt to ascertain the validity of the tests for minority children”; and the failure of the state to investigate and act on legal requirements to report significant variances in racial and ethnic composition in E.M.R. classes. The court noted that “the SDE’s actions revealed a complacent acceptance of those disproportions, and that complacency was evidently built on easy but unsubstantiated assumptions about the incidence of retardation or at least low intelligence among black children.”

VI. Rehabilitation Act

Congress was clearly concerned with the misclassification of students as retarded. The Senate Report for the Rehabilitation Act states that “racial and481 ethnic factors may contribute to misclassification as mentally retarded.” The Senate Report states that “[the Committee] is deeply concerned about practices and procedures which result in classifying children as having handicapping conditions when, in fact, they do not have such conditions.”

The Education For All Handicapped Children Act specifically requires that tests and evaluation procedures be free of racial and cultural bias. Both the EAHCA and the Rehabilitation Act require that the tests used for evaluation be validated for the specific purpose for which they are used, and that placement not be based upon a single criterion but on a variety of sources.

Appellant argues that the IQ tests were validated for the specific purposes for which they are used. Appellant analogizes to Title VII cases, notably Washington v. Davis, 426 U.S. 229 (1976), for the proposition that tests that are valid predictors of future performance can be utilized even if they have a discriminatory impact. There are two problems with appellant’s proposition. First, the employment context is quite different from the educational situation. As the district court stated, “tests can predict that a person is going to be a poor employee, the employer can legitimately deny that person a job, but if tests suggest that a young child is probably going to be a poor student, the school cannot on that basis alone deny that child the opportunity to improve and develop the academic skills necessary to success in our society.” Assigning a student to an E.M.R. class denies that child the opportunity to develop the necessary academic skills, since E.M.R. classes do not teach academic subjects and are essentially a dead-end academic track. Second, and more important, the question for predictive validity in schools is not whether the standardized intelligence tests predict future school performance generally, as appellant argues, but whether the tests predict specifically that black elementary schoolchildren (as opposed to white elementary schoolchildren) who score at or below 70 on the IQ tests are mentally retarded and incapable of learning the regular school curriculum. In this case, the appellant would have to have shown that the tests are a proven tool to determine which students have characteristics consistent with E.M.R. status and placement in E.M.R. classes, i.e., “whose mental capabilities make it impossible for them to profit from the regular educational programs” even with remedial instruction. The regulations place the burden of showing such validation on the defendants.

The district court found that defendants failed to show that the tests were validated for placing black students with scores of 70 or less in E.M.R. classes. The district court noted that very few studies had examined the difference of IQ predictability for black as compared to white populations, and that those studies which had examined this problem found the tests much less valid for blacks than for whites. Further, the district court found that, even assuming the tests were validated for placement of white schoolchildren in E.M.R. classes, such validation for blacks had been generally assumed but not established. In addition, no studies have been made, either by the defendants or the testing companies, to investigate the reasons for the one standard deviation difference in test scores between the races or to determine whether test redesign could eliminate any bias. There was expert testimony that a much larger percentage of black than white children had been misplaced in E.M.R. classes. Based on the evidence in482 the record, the district court finding that the appellant had not established validation of the test is not clearly erroneous.

The district court also found that the appellant did not utilize the variety of information required by statute and regulation to make E.M.R. placements, but relied primarily on the IQ test. This finding also is not clearly erroneous.

Since the appellant has not shown that these findings are clearly erroneous, we affirm the district court’s holding that the defendants violated the provisions of the Rehabilitation Act and the Education For All Handicapped Children Act (1) by not insuring that the tests were validated for the specific purpose for which they are used, and (2) by not using the variety of statutorily mandated evaluation tools.

VII. Title VI

Title VI of the Civil Rights Act of 1964 provides that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. Regulations issued under [Title VI] require that recipients of federal funding may not “utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives at the program as respect individuals of a particular race, color, or national origin.

In Guardians Association v. Civil Service Commission or City of New York, 463 U.S. 582 (1983), a majority of the Court held that a violation of Title VI required proof of discriminatory intent. A different majority held, however, that proof of discriminatory effect suffices to establish liability when the suit is brought to enforce regulations issued pursuant to the statute rather than the statute itself. The appellees relied on the regulations issued pursuant to Title VI. The lower court held that the placement mechanisms for E.M.R. classes operated with a discriminatory effect in violation of the regulations and HEW’s “interpretative guidelines.” In light of appellees’ reliance on the regulations, we find it appropriate to apply a discriminatory effect analysis.

A prima facie case is demonstrated by showing that the tests have a discriminatory impact on black schoolchildren. Once a plaintiff has established a prima facie case, the burden then shifts to the defendant to demonstrate that the requirement which caused the disproportionate impact was required by educational necessity.

Appellees clearly demonstrated the discriminatory impact of the challenged tests. The burden therefore shifted to the defendants to demonstrate that the IQ tests which resulted in the disproportionate placement of black children were required by educational necessity.

Appellant argues first that E.M.R. classes are a benefit for, rather than adverse discrimination against, black children, implying that appellees did not even establish a prima facie case. However, the district court found that improper placement in E.M.R. classes has a definite adverse effect, in that483 E.M.R. classes are dead-end classes which deemphasize academic skills and stigmatize children improperly placed in them. Even appellant’s witnesses testified that it would be extremely improper for a non-mentally retarded child to be placed in an E.M.R. classroom. Though the E.M.R. class might be a benefit for those students who are educable mentally retarded, it is clearly damaging to a non-retarded student to be placed in those classes. The district court’s finding is not clearly erroneous, and thus appellees established a prima facie case of a Title VI violation based upon discriminatory effect.

Appellant next argues that even if the impact is adverse, it is not caused by discriminatory criteria (the IQ tests), but by other nondiscriminatory factors: (1) placement is based on a variety of information and evaluation tools that are non-discriminatory, and not solely on the IQ tests; (2) the tests are validated for black schoolchildren, and therefore accurately reflect mental retardation in black children; and (3) blacks have a higher percentage of mental retardation than whites.

Appellant’s first two arguments have been discussed supra, and are unavailing. Appellant’s third argument is that the disproportionate number of black children in E.M.R. classes is based on a higher incidence of mental retardation in blacks than in whites that is due to poor nutrition and poor medical care brought on by the lower socioeconomic status of blacks. This argument also fails. The district court specifically found the testimony of appellant’s experts in support of this argument failed to explain why more severe mental retardation does not occur in greater proportions among the poorer sections of the population. [T]he district court did not err in holding that the defendants violated Title VI by utilizing these IQ tests for placement into E.M.R. classes.

VII. Equal Protection Violation

We cannot, however, sustain the finding of a violation by Superintendent Riles of the equal protection clause of the fourteenth amendment on the theory that the pervasiveness of discriminatory effect can, without more, be equated with the discriminatory intent required by Washington v. Davis. Accordingly, we reject these facts of the trial court and reverse the conclusions that the Superintendent was guilty of intentional discrimination under the fourteenth amendment.

NOTES AND QUESTIONS

1. PASE v. Hannon. Despite remarkably similar facts and legal issues, the district court in Parents in Action on Special Education (PASE) v. Hannon, 506 F. Supp. 831 (N.D. Ill. 1980), held that use of IQ tests to disproportionately place African American students into EMR courses did not violate §504, the IDEA, or Title VI. The court, after conducting a question-by-question analysis on the two relevant exams, held that plaintiffs failed to prove that the tests were culturally biased. Rather, the court found that racial disparities were the result of higher levels of poverty among African American children. In reaching this conclusion, the court rejected plaintiffs’ expert witness testimony that484 socioeconomic differences could not possibly cause such a high level of mental retardation. The PASE court, unlike the Larry P. court, concluded that IQ scores were only one factor that entered into the assessment and rejected plaintiffs’ theory that a student’s IQ score had a “hypnotic effect” on the participants in the evaluation process.

Can the Hannon and Larry P. decisions be reconciled? Is it true, as the court in Hannon concluded, that the parties in Larry P. did not dispute whether IQ tests were racially and culturally biased? Or do these two courts merely look at the evidence to prove bias differently, with the Larry P. court finding disparate IQ tests results establish bias while the Hannon court required bias in the test questions? Claims that standardized tests are biased are not simply an interesting historical footnote; they persist today. See, e.g., NAACP Complaint to the Office of Civil Rights (Sept. 28, 2012), available at http://www.naacpldf.org/files/case_issue/Specialized%20High%20Schools%20Complaint.pdf (claiming that the admissions process for New York City’s elite public high schools hinging exclusively on a biased standardized test that results in significant underrepresentation of Latinos and African Americans violates Title VI of the Civil Rights Act of 1964).

Tracking programs have often been upheld despite resulting in overrepresentation of minorities in the lower tracks. People Who Care v. Rockford Bd. of Educ., 111 F.3d 528 (5th Cir. 1995); Quarles v. Oxford Mun. Separate Sch. Dist., 868 F.2d 750, 754-755 (5th Cir. 1989). These cases, however, did not involve disability claims.

2. Later developments in Larry P. The district court in Larry P. prohibited the use of IQ tests to evaluate black students for placement only in EMR classes. In 1986, the court modified the Larry P. injunction to prohibit the use of IQ tests to classify black students in all disability categories. The modification was challenged in 1986 by black students seeking IQ testing to establish that they had a severe discrepancy between achievement and intellectual ability eligibility and were eligible as learning disabled. The Ninth Circuit vacated the 1986 modification as unsupported by the factual findings in Larry P. Crawford v. Honig, 37 F.3d 485 (9th Cir. 1995). The Ninth Circuit acknowledged that Larry P. was about “the racial and cultural biases in IQ tests and the lack of scientific validation for the tests for culturally and racially different groups,” but concluded that “the focus of the district court’s inquiry was the disproportionate enrollment of African-American children in dead-end E.M.R. classes, not the use of IQ tests generally.” Id. at 488. If IQ tests are racially and ethnically biased for purposes of determining whether a child is mentally retarded, are they also not problematic for determining that a child is learning disabled? Was the real issue in Larry P. that EMR classes were considered dead-end classes?

3. Discriminatory effect. The primary disagreement between the majority and the dissent in Larry P. was whether plaintiffs had established that IQ tests had an impermissible discriminatory effect under Title VI. The Supreme Court has since held that there is no private right of action to enforce disparate impact regulations promulgated under Title VI, meaning discriminatory intent must be established. Alexander v. Sandoval, 532 U.S. 275 (2001). Professors Losen and485 Welner, supra, suggest that Title VI claims could be linked with either §1983 claims or §504 and IDEA claims to avoid the Sandoval prohibition. If remedies can be obtained for minority overrepresentation under the IDEA and §504, what benefits are there to bringing a Title VI claim? One reason may be that broader-based remedies affecting practices in general education are available under Title VI. Another, more important reason may be the difficulty in proving that standardized tests are biased without utilizing a disparate impact analysis. Considering that the IDEA imposes significant affirmative obligations to serve students with disabilities and is not merely an antidiscrimination statute like Title VI, should private plaintiffs be allowed to prove violations through disparate impact analysis?

4. Testing bias or innate differences in abilities? Both the Hannon and Larry P. courts summarily rejected the idea that innate differences between the races may explain the differences in IQ test scores. Both courts also noted that if the defendants had raised this defense, it would have been proof of intentional discrimination. The debate as to innate genetic differences in intelligence between the races lives even today. In 1994, the controversial book The Bell Curve: Intelligence and Class Structure in American Life by Richard J. Herrnstein and Charles Murray resurrected the genetic inferiority argument of the eugenics era out of America’s subconscious and into the mainstream media, sparking heated debates about whether different racial groups had different innate mental abilities. The critics of Professors Herrnstein and Murray acknowledge a black-white gap in IQ tests scores but allege the source of the gap is environmental and not genetic or hereditary. They point to studies showing that black children adopted by white parents have higher IQs than black children adopted by black families, that children of black GIs in Germany have nearly identical scores to children of white GIs in Germany, and that educational interventions improve IQ scores to argue that environmental factors are the sole determinant of IQ scores. See, e.g., Richard E. Nisbett, A Commentary on Rushton and Jensen, 11 Psychol. Pub. Pol’y & L. 302, 303-307 (2005). The critics acknowledge that the IQ tests may not be racially biased, as was found in Hannon, but they do not reflect what individuals may be capable of under different circumstances. See, e.g., Robert J. Sternberg, There Are No Public Policy Implications: A Reply to Rushton and Jensen, 11 Psychol. Pub. Pol’y & L. 295, 299 (2005). Yet other research shows that “stereotype threat” may play a significant role in depressing minority scores on standardized tests. Studies have shown that if a student knows he is expected to perform poorly on a test because of negative stereotypes related to his or her social group, then the student will perform poorly due to anxiety. Claude Steele & Joshua Aronson, Steele, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. Personality & Soc. Psych. 797 (1995). Finally, critics also argue that race is a social construction and not a biological concept. Contemporary science discredits the notion of “race” as a biological or genetic category because there is no identifiable set of genes distinguishing the races. See Richard S. Cooper et al., Race and Genetics, 348 New Eng. J. Med. 1166, 1168 (2003); Sharona Hoffman, Is There a Place for “Race” as a Legal Concept?, 36 Ariz. St. L.J. 1093 (2004). A “black” person may have more in common486 genetically with a “white” person than with another “black” person. See Ashley Montagu, Man’s Most Dangerous Myth: The Fallacy of Race (1997); Nisbett, supra at 304.

b. Socioeconomic Factors

A direct correlation between race and disability is disputed, but all agree that there is a strong correlation between race and poverty and poverty and disability. The courts in Larry P., Hannon, and Hobson recognized that poverty leads to biological and social deficits, which in turn lead to a higher need for special education among African Americans who are disproportionately underprivileged. The biological effects of poverty that contribute to an achievement gap in cognition and behavior include lower birth weight, poor nutrition, and increased exposure to toxins (e.g., lead, alcohol, tobacco, drugs), all of which correlate to educational performance. The social and environmental effects of poverty also contribute to African American students’ greater need for special education. Low-socioeconomic-status homes display less optimal educational environments, as they have less language stimulation, less direct teaching, higher incidences of maternal depression, lower-quality childcare, and less stimulating parenting practices. Professor Ryan thoroughly explains the recent neuroscience showing the dramatic affects poverty can have on children’s cognition and behavior. James Ryan, Poverty as a Disability and the Future of Special Education Law, 101 Geo. L.J. 1455 (2013). The result is a further separation between the socioeconomic classes in behavior and achievement upon entering school. Most significantly, as Judge Wright noted in Hobson, the inadequate education received by children from low-socioeconomic-status homes contributes to eligibility for special education. More African Americans attend substandard schools, and such schools create students that need special education.

But the unequal representation of minorities, particularly African Americans, in special education cannot be explained by socioeconomic factors alone. The court in Larry P. expressly rejected the argument that African American children were properly represented in special education courses because of their poverty levels. A similar argument was rejected in Hobson, wherein Judge Wright held that the placement of African American students in special education courses was the result of discrimination, and not actual disabilities within the students themselves. Overrepresentation persists even when poverty is taken into account, and African American students are in fact more likely to be identified as eligible in upper- and high-income schools. 20 U.S.C. §1400(c)(12)(E) (2006) (“schools with predominantly white students and teachers have placed disproportionately high numbers of their minority students into special education”); see also Robert Garda, Jr., The New IDEA: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 Ala. L. Rev. 1071 (2005). But see Morgan et al., Minorities are Disproportionately Underrepresented in Special Education: Longitudinal Evidence Across Five Disability Categories, Educational Researcher (June 24, 2015) (finding that when minority children’s greater exposure to factors that increase the risk for disabling condition are taken487 into account, minority students are underrepresented in special education). The nature of African American overrepresentation also belies the conclusion that the negative biological, environmental, and educational effects of poverty account for the entire imbalance in special education. African American students’ extreme overrepresentation in the high-incidence or judgmental disabilities, but not in the low-incidence or nonjudgmental disabilities, indicates that factors independent of socioeconomic status and actual ability affect the eligibility process.

c. Bias in Eligibility Determination

Because innate differences between races and socioeconomic differences cannot explain minority overrepresentation in special education, bias may be the only explanation. Bias is not only present in the means by which children are assessed to have disabilities, but also in the means by which children are found eligible for special education. Recall that to be IDEA eligible, a child must be diagnosed with a disability, that disability must adversely affect educational performance, and the child must need special education. The Larry P., Hannon, and Hobson decisions dealt with bias in the assessment of a disability phase, but bias may also be present in the remaining steps of the eligibility determination. In the following excerpt, Professor Glennon argues that implicit bias permeates the entire eligibility process for minorities, from referral, to assessment to the final eligibility determination.

Theresa Glennon, Race, Education, and the Construction of a Disabled Class

1995 Wis. L. Rev. 1237

Special education presents a paradox. While it is designed to confer increased educational benefits, it also stigmatizes and severely limits educational opportunities. While many students benefit from placement in special education, students placed in special education may suffer the negative consequences of being labeled disabled by their teachers, peers, and themselves. Students’ learning difficulties are often understood as reflecting innate limitations, and not unsuccessful education programs. Teachers often have diminished expectations for students identified as disabled. Nondisabled peers tease or ostracize special education students. Moreover, placement in special education may diminish students’ self-esteem and lead to feelings of humiliation, alienation and failure.

Because special education students are often viewed as limited, school officials may not expect them to have the same goals and aspirations as other students. For this reason, special education programs often do not follow the regular curriculum. Reduced expectations may in turn lead to reduced achievement. Rather than providing special education students with the curriculum needed to obtain a “regular” high school diploma or attend college, schools488 often track these students into low-skill vocational education programs. Few students ever fully rejoin the regular education program. If they do, they are likely to have lost academic ground in the process. Special education students drop out of school at a rate much higher than that of the general student population, and these students are more likely to face unemployment or arrest after leaving school.

Constructing Race and Disability

Like race, disability is a social construct. Disability is seen as an objective condition—the disability can be evaluated and diagnosed. [But] while some disabilities have a biological basis, others are completely based on social and cultural norms, rather than biology. Non-biologically based “disabilities”—such as mild mental retardation, learning disabilities, and serious emotional disturbance—are seen as the social assignment of deviancy to behavior that diverges from that expected in a certain setting. Thus, “[n]ormal behavior is role performance that conforms to the norms and expectations of the social system.”

These scholars argue that for many special education students identified as mildly mentally retarded, learning disabled, and seriously emotionally disturbed, there is no identification of a biological basis for the disability. Instead, the disability is diagnosed based on observed behavior and achievement test scores. These diagnoses, then, reflect social and cultural beliefs about appropriate learning and behavior in school. The fact that these students are often perceived as disabled only within the school environment highlights the socially constructed nature of these disabilities.

The Process Is Open to Distortion by Unconscious and Structural Racism

While greatly diminished, overt racism still finds a home in some public schools. However, school teachers and administrators usually do not perceive themselves to be racially prejudiced or engaged in overtly racist actions. Since overt racial hostility is the only definition of racism readily available to them, they would not see racial meaning in their actions. Unnoticed are the pervasive but more insidious effects of unconscious and structural racism, which are not limited to one moment, such as the use of culturally biased IQ tests, but pervade the school lives of African-American students and all aspects of their identification as disabled.

The effects of racism begin long before a teacher referral for evaluation is made. Given the structural links between poverty and racism, African-American children are less likely to have had quality health care and challenging preschool experiences prior to kindergarten. Even before entering elementary school, racism may have affected their self-image. These experiences may lead them to approach their new schools with less trust and self-confidence than many white children feel. They may also have less of the majority cultural knowledge by which they will be judged.

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The sorting and labeling of students begins immediately upon starting school. The lens through which administrators view African-American children at their initial meeting may strongly affect initial placement decisions, long before special education is mentioned to parents. African-American children entering predominantly white school systems often confront cultural communication problems and diminished expectations. In poor, predominantly minority urban school systems, administrators may warily approach students who appear to be “unmanageable” in the large, understaffed classrooms they will be entering. The lens of unconscious racism affects even upper middle class African-American students attending private schools.

Once they are in school, the negative stereotypes of African-Americans as less capable, more disruptive, and even violent held by many teachers may provide a powerful heuristic for interpreting the everyday behavior and actions of black children. Studies show that even well-meaning teachers respond less favorably to the contributions and actions of African-American students than they do to those of white students. Practices that may be affected by unconscious racial bias include favoring some students to speak in class, or praising some students while ignoring the contributions of others. This heuristic affects teacher perceptions concerning every interaction, and may lead teachers to overreact to small disruptions by African-American students. Researchers have also found that teachers respond more negatively to students who are both African-American and poor. Teachers are more likely to want to remove African-American students from their classes to get rid of an uncomfortable problem.

These problems seem to be exacerbated when African-American students have white teachers. One study has shown that African-American students do better in school districts with larger proportions of black teachers. Teacher discomfort may be increased by real, unseen cultural differences when African-American students have white teachers. Since few schools have incorporated multicultural curricula or multicultural training for teachers, many student-teacher interactions are frustrated by cultural misunderstandings. These differences may affect learning and communication styles. For example, some researchers have found that some African-American students devote significant energy to the “stage setting” that precedes the performance of a task. However, white teachers often believe that these students are merely wasting time or not paying attention. These cultural misunderstandings may result in those teachers perceiving students to be oppositional or incapable of understanding what is required of them.

Where teachers see children as less capable because of the disadvantages caused by poverty, and factor that together with the perception that they are less capable because of their race, there is a heightened chance that they will be seen as disabled. Once a teacher believes that a child may be disabled, all of the institutional cues encourage the notion that the problem is with the child, not the school environment. Teachers may also believe that placement in special education may help a child who they are not sure is really disabled, but who needs more attention than they can provide. Because the dominant story is created by teachers and administrators, the official story that develops is of a490 deviant and disabled child, not debilitating institutional practices. These practices preceding a referral for evaluation have received no attention from statutes and courts. Once the referral [for special education] is made, students enter a process that leaves tremendous room for discretion and the operation of racism. Narratives of unconscious and structural racism provide a broader basis from which to critique the false confidence with which IQ tests are used in the evaluation process. Because the IDEA’s regulatory definitions of disabilities contain broad language that leave tremendous discretion in interpretation, children with similar profiles may be given different classifications—or one may be found to be disabled while another is deemed to be just a little “slow.” The formation of an identity as disabled is powerfully affected by race. The label of disability becomes a way to remove children seen as difficult, or even a well-meaning but misguided method of getting students more resources. These accounts of unconscious and structural racism in schools should lead us to consider connections between the overrepresentation of African-American students in special education to other disturbing school practices, including racial disparities in student discipline, ability grouping and school financing.

NOTES AND QUESTIONS

1. Races other than African Americans. If cultural bias explains the disproportionate representation of African American students in special education, what explains the underidentification of Asian/Pacific Islanders or the lack or disproportionate representation of Hispanics in special education? Are teachers biased in favor of Asian/Pacific Islanders? Are the biases against Hispanics different from the biases against African Americans?

2. Change teachers or change students? Professor Glennon argues that the cultural disconnect between African American students and the white-centric values in the classroom, and particularly white teachers, is partially to blame for overreferral for special education. Should the classroom culture respond to the varied cultures of its students, or should the students be compelled to fit into a one-size-fits-all classroom culture? In other words, are students “disabled” if they cannot fit into a culture? In Brown v. Board of Education, the Supreme Court held that public education is the “principal instrument in awakening the child to cultural values.”

3. Eliminating bias. Is there any means by which racial and cultural bias can be eliminated from the classroom? If racial and cultural bias can be eliminated from the referral and assessment phase of eligibility determinations, will overrepresentation still persist? IQ tests are typically the only “objective” assessment to determine eligibility. As Judge Enright in his dissent in Larry P. noted, IQ tests were adopted to prevent subjective evaluations that were open to abuse and led to misplacement. The defendants in Hannon also expressed fear that without IQ tests, assessments would be made on a subjective basis. Is this argument persuasive? By moving away from “objective” IQ tests and toward subjective classroom assessment to determine eligibility, is the IDEA moving in the wrong491 direction? Is it better to have biased objective criteria or subjective criteria that permit bias?

4. Preventing overidentification. There are two broad approaches to combat minority overrepresentation in special education: by eliminating the harmful effects of disproportionate placement into special education or by eliminating disproportionate placement in the first instance. The IDEA was amended in 2004 to, among other things, reduce minority overrepresentation in special education. It allows local educational agencies to use up to 15 percent of their funds to provide “early intervening services” to students before they are identified as needing special education. 20 U.S.C. §1413(f) and (a)(4)(A)(ii) (2006). Congress encourages the provision of early intervening services to prevent referral of mere “instructional casualties” to special education and to reduce minority overrepresentation in special education. Id. §1400(c)(5)(F). Will requiring that schools provide services to students before they are referred to special education eliminate the bias in the identification process identified by Professor Glennon? Congress also dropped its requirement that eligibility for specific learning disability be established by a discrepancy between IQ and ability and instead encouraged the use of Response-to-Intervention (RTI) as a diagnostic tool. Id. §1414(b)(6). RTI requires that students are given increasingly intense and individualized instruction before they are determined eligible for special education, which, in theory, would help distinguish between those who truly have a disability and those who are receiving poor or inappropriate instruction. Might RTI exacerbate rather than ameliorate minority overrepresentation? For a discussion of the effectiveness of these legislative changes to address minority overrepresentation, see Angela Ciolfi & James Ryan, Race and Response-to-Intervention in Special Education, 54 How. L.J. 303 (2011) (arguing that recent changes to the IDEA will not eliminate misidentification along racial lines). Do early intervening services or RTI appropriately address the bias Professor Glennon argues is the primary culprit of overidentification? Professor Garda argues that the ambiguity in the eligibility criteria allows eligibility teams too much discretion and opens the door to bias. He proposes that the eligibility standards discussed at the beginning of the chapter—“need special education” and “educational performance”—be more specifically defined to curb inherently biased eligibility determinations. Robert A. Garda, Jr., The New IDEA: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 Ala. L. Rev. 1071 (2005). Is it possible to create clear standards that eliminate bias in such an individualized assessment?

5. Reducing the harms of special education placement. Professor Glennon notes the “paradox” of placement in special education: it can offer significant benefits, but the stigma and reduced expectations can be harmful. The No Child Left Behind Act of 2001 (NCLB), and its replacement, the Every Student Succeeds Act (ESSA), seek to eliminate the watered-down curriculums and lowered expectations in special education classes by requiring students with disabilities to meet the same challenging academic standards as students in general education. The ESSA requires states to develop challenging academic content standards and aligned academic achievement standards that apply to all public school students in the state. See, e.g., 20 U.S.C. §6311(b)(1) (2015). States492 may develop alternate academic achievement standards for students with the most significant cognitive disabilities, but such alternative standards must align with the challenging state academic content standards and include the highest possible standards achievable by such students. 20 U.S.C. §6311(b)(1)(E). Students with disabilities must also participate in the statewide academic assessments, 20 U.S.C. §6311(b)(2), and may take tests under accommodated conditions, but only 1 percent of the total number of all students in the state who are assessed may take alternate assessments. 20 U.S.C. §6311(b)(2)(D).

The ESSA requires each state to establish ambitious long-term goals for all students and separately for each subgroup of students, including students with disabilities, for, at a minimum, improved academic achievement. The time period set by the state must take into account the improvement necessary to make “significant progress” in closing statewide proficiency and graduation rate gaps for subgroups of students who are behind. 20 U.S.C. §6311(c)(4)(A).

By requiring students with disabilities to meet the same challenging content standards as general education students, the ESSA hopes to reduce the harmful effects of minority overrepresentation in special education. But unlike NCLB, which penalized schools if students with disabilities failed to make annual yearly progress under standards applicable to all students, the ESSA allows states to set different proficiency goals for each subgroup. In most states, students with disabilities are the lowest performing subgroup and, therefore, will be assigned proficiency rate goals lower than all other students and students overall. Depending upon the starting point and what each state determines is “significant progress,” long-term goals could result in expecting less than half of students with disabilities to be proficient in reading/language arts and/or mathematics. Also, both the NCLB and ESSA create perverse incentives to overidentify students as disabled so that schools can give more students tests under accommodated conditions. See Matthew R. Plain, Comment, Results Above Rights? The No Child Left Behind Act’s Insidious Effect on Students with Disabilities, 10 Roger Williams U. L. Rev. 249, 258-260 (2004).

PROBLEM

Juan’s family recently emigrated from Mexico to the United States and settled in Rich County, a county that until recently was populated by almost exclusively middle-class whites. Juan’s family moved to Rich County because the schools were strong and there was a burgeoning Hispanic community. For his first several years at the Rich County Schools, Juan barely made passing grades, partly because of mild language barriers, but he was a well-mannered student. In ninth grade, Juan started to really struggle in school, failing some classes for the first time, and began to act more rowdy in class with his friends. After receiving a report card of almost all D’s and F’s, and after numerous detentions, Juan’s English teacher referred him for a special education evaluation. Juan’s IQ score barely qualified him as mentally retarded, and a psychological evaluation conducted by school personnel indicated he was emotionally disturbed. The school determined that Juan was IDEA eligible under the mentally493 retarded and emotionally disturbed categories and recommended placement in exclusively special education academic courses. Juan’s parents disagreed with the assessments but went along with the school’s recommended placement because they thought Juan might benefit from special attention. Juan began his special education curriculum and immediately realized that a vast majority of his special education classmates were Hispanic. It was also apparent after one week that they were not learning anything approaching the general curriculum he was receiving in his former classes. Juan’s parents believe that the school is intentionally segregating Hispanic students in special education classes and that Juan is not really disabled. They want to contest the district’s special education placement practices. What claims might they bring? What further information would you need to determine whether they have valid claims? Does it matter that nationally Hispanic students are only 0.55 as likely as all other races/ethnicities combined to be categorized as emotionally disturbed and only 0.72 times as likely to be found mentally retarded?

C. THE PROTECTIONS AFFORDED STUDENTS WITH DISABILITIES

Once a child is found eligible under either the IDEA or §504 and the ADA, he or she is entitled to significant protections and benefits. Subsection 1 discusses the general antidiscrimination protections afforded students under §504 and the ADA. These statutes prohibit discrimination against qualified students by compelling schools to provide certain accommodations. The remaining subsections cover the affirmative obligations created by the IDEA, such as the obligation to identify, evaluate, appropriately educate, and appropriately discipline students with disabilities.

1. Nondiscrimination: §504 and the ADA

Title II of the ADA and §504 of the Rehabilitation Act protect students with disabilities against discrimination. The statutes have nearly identical language. Title II of the ADA provides: “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §12132 (2006). Section 504 of the Rehabilitation Act provides: “No otherwise qualified individual with a disability…shall, solely by reason of her or his disability, be excluded from the participation in…any program or activity receiving Federal financial assistance.…” 29 U.S.C. §794(a) (2006). The only readily apparent difference between the two is that Title II applies to “public entities,” which includes public schools, 42 U.S.C. §12131(1), while the Rehabilitation Act applies to “recipients” of federal financial assistance, which includes any schools receiving federal494 money. 34 C.F.R. §§104.31 and 104.3(f) (2000). Courts often rule that schools’ obligations to qualified students with disabilities are the same under both statutes and warrant only a single analysis. See, e.g., Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 287-288 (5th Cir. 2005); Doe v. Woodford Cnty. Bd. of Educ., 213 F.3d 921, 925 (6th Cir. 2000).

Both statutes require educational institutions to make reasonable accommodation for qualified students. As the next case indicates, though, the duty to provide reasonable accommodation does not require educational institutions to substantially modify their existing programs, nor must they offer accommodations that would create an undue financial or administrative burden.

Southeastern Community College v. Davis

442 U.S. 397 (1979)

Mr. Justice Powell delivered the opinion of the Court.

This case presents a matter of first impression for this Court: Whether §504 of the Rehabilitation Act of 1973, which prohibits discrimination against an “otherwise qualified handicapped individual” in federally funded programs “solely by reason of his handicap,” forbids professional schools from imposing physical qualifications for admission to their clinical training programs.

Respondent, who suffers from a serious hearing disability, seeks to be trained as a registered nurse. During the 1973–1974 academic year she was enrolled in the College Parallel program of Southeastern Community College, a state institution that receives federal funds. Respondent hoped to progress to Southeastern’s Associate Degree Nursing program, completion of which would make her eligible for state certification as a registered nurse. In the course of her application to the nursing program, she was interviewed by a member of the nursing faculty. It became apparent that respondent had difficulty understanding questions asked, and on inquiry she acknowledged a history of hearing problems and dependence on a hearing aid. She was advised to consult an audiologist.

On the basis of an examination at Duke University Medical Center, respondent was diagnosed as having a “bilateral, sensori-neural hearing loss.” A change in her hearing aid was recommended, as a result of which it was expected that she would be able to detect sounds “almost as well as a person would who has normal hearing.” But this improvement would not mean that she could discriminate among sounds sufficiently to understand normal spoken speech. Her lipreading skills would remain necessary for effective communication: “While wearing the hearing aid, she is well aware of gross sounds occurring in the listening environment. However, she can only be responsible for speech spoken to her, when the talker gets her attention and allows her to look directly at the talker.”

Southeastern next consulted Mary McRee, Executive Director of the North Carolina Board of Nursing. On the basis of the audiologist’s report, McRee495 recommended that respondent not be admitted to the nursing program. In McRee’s view, respondent’s hearing disability made it unsafe for her to practice as a nurse. In addition, it would be impossible for respondent to participate safely in the normal clinical training program, and those modifications that would be necessary to enable safe participation would prevent her from realizing the benefits of the program: “To adjust patient learning experiences in keeping with [respondent’s] hearing limitations could, in fact, be the same as denying her full learning to meet the objectives of your nursing programs.”

After respondent was notified that she was not qualified for nursing study because of her hearing disability, she requested reconsideration of the decision. The entire nursing staff of Southeastern was assembled, and McRee again was consulted. McRee repeated her conclusion that on the basis of the available evidence, respondent “has hearing limitations which could interfere with her safely caring for patients.” Upon further deliberation, the staff voted to deny respondent admission.

Respondent then filed suit in the United States District Court for the Eastern District of North Carolina, alleging both a violation of §504 of the Rehabilitation Act of 1973 and a denial of equal protection and due process. After a bench trial, the District Court entered judgment in favor of Southeastern. [It found that in many situations, such as an operating room or intensive care unit, everyone wears surgical masks and lipreading would be impossible, meaning respondent’s handicap prevents her from safely performing both her training program and her proposed profession. T]he District Court concluded that respondent was not an “otherwise qualified handicapped individual” protected against discrimination by §504. In its view, “[o]therwise qualified, can only be read to mean otherwise able to function sufficiently in the position sought in spite of the handicap, if proper training and facilities are suitable and available.” Because respondent’s disability would prevent her from functioning “sufficiently” in Southeastern’s nursing program, the court held that the decision to exclude her was not discriminatory within the meaning of §504.

On appeal, the Court of Appeals for the Fourth Circuit reversed. [T]he appellate court believed that §504 required Southeastern to “reconsider plaintiff’s application for admission to the nursing program without regard to her hearing ability.” It concluded that the District Court had erred in taking respondent’s handicap into account in determining whether she was “otherwise qualified” for the program, rather than confining its inquiry to her “academic and technical qualifications.” The Court of Appeals also suggested that §504 required “affirmative conduct” on the part of Southeastern to modify its program to accommodate the disabilities of applicants, “even when such modifications become expensive.”

Because of the importance of this issue to the many institutions covered by §504, we granted certiorari. We now reverse.

As previously noted, this is the first case in which this Court has been called upon to interpret §504. It is elementary that “[t]he starting point in every case involving construction of a statute is the language itself.” Section 504 by its496 terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate. Instead, it requires only that an “otherwise qualified handicapped individual” not be excluded from participation in a federally funded program “solely by reason of his handicap,” indicating only that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context.

The court below, however, believed that the “otherwise qualified” persons protected by §504 include those who would be able to meet the requirements of a particular program in every respect except as to limitations imposed by their handicap. Taken literally, this holding would prevent an institution from taking into account any limitation resulting from the handicap, however disabling. It assumes, in effect, that a person need not meet legitimate physical requirements in order to be “otherwise qualified.” We think the understanding of the District Court is closer to the plain meaning of the statutory language. An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap.

The regulations promulgated by the Department of HEW to interpret §504 reinforce, rather than contradict, this conclusion. According to these regulations, a “[q]ualified handicapped person” is, “[w]ith respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the [school’s] education program or activity.…” 45 C.F.R. §84.3(k)(3). A note emphasizes that legitimate physical qualifications may be essential to participation in particular programs. We think it clear, therefore, that HEW interprets the “other” qualifications which a handicapped person may be required to meet as including necessary physical qualifications.

III

The remaining question is whether the physical qualifications Southeastern demanded of respondent might not be necessary for participation in its nursing program. It is not open to dispute that, as Southeastern’s Associate Degree Nursing program currently is constituted, the ability to understand speech without reliance on lipreading is necessary for patient safety during the clinical phase of the program. As the District Court found, this ability also is indispensable for many of the functions that a registered nurse performs.

Respondent contends nevertheless that §504, properly interpreted, compels Southeastern to undertake affirmative action that would dispense with the need for effective oral communication. First, it is suggested that respondent can be given individual supervision by faculty members whenever she attends patients directly. Moreover, certain required courses might be dispensed with altogether for respondent. It is not necessary, she argues, that Southeastern train her to undertake all the tasks a registered nurse is licensed to perform. Rather, it is sufficient to make §504 applicable if respondent might be able to perform satisfactorily some of the duties of a registered nurse or to hold some of the positions available to a registered nurse.

497

Respondent finds support for this argument in portions of the HEW regulations discussed above. In particular, a provision applicable to postsecondary educational programs requires covered institutions to make “modifications” in their programs to accommodate handicapped persons, and to provide “auxiliary aids” such as sign-language interpreters. Respondent argues that this regulation imposes an obligation to ensure full participation in covered programs by handicapped individuals and, in particular, requires Southeastern to make the kind of adjustments that would be necessary to permit her safe participation in the nursing program.

We note first that on the present record it appears unlikely respondent could benefit from any affirmative action that the regulation reasonably could be interpreted as requiring. Section 84.44(d)(2), for example, explicitly excludes “devices or services of a personal nature” from the kinds of auxiliary aids a school must provide a handicapped individual. Yet the only evidence in the record indicates that nothing less than close, individual attention by a nursing instructor would be sufficient to ensure patient safety if respondent took part in the clinical phase of the nursing program. Furthermore, it also is reasonably clear that §84.44(a) does not encompass the kind of curricular changes that would be necessary to accommodate respondent in the nursing program. In light of respondent’s inability to function in clinical courses without close supervision, Southeastern, with prudence, could allow her to take only academic classes. Whatever benefits respondent might realize from such a course of study, she would not receive even a rough equivalent of the training a nursing program normally gives. Such a fundamental alteration in the nature of a program is far more than the “modification” the regulation requires.

Moreover, an interpretation of the regulations that required the extensive modifications necessary to include respondent in the nursing program would raise grave doubts about their validity. If these regulations were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more than clarify the meaning of §504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute.

The language and structure of the Rehabilitation Act of 1973 reflect a recognition by Congress of the distinction between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps. Section 501(b), governing the employment of handicapped individuals by the Federal Government, requires each federal agency to submit “an affirmative action program plan for the hiring, placement, and advancement of handicapped individuals.…” These plans “shall include a description of the extent to which and methods whereby the special needs of handicapped employees are being met.” Similarly, §503(a), governing hiring by federal contractors, requires employers to “take affirmative action to employ and advance in employment qualified handicapped individuals.…” The President is required to promulgate regulations to enforce this section.

Under §501(c) of the Act, by contrast, state agencies such as Southeastern are only “encourage[d]…to adopt and implement such policies and procedures.” Section 504 does not refer at all to affirmative action, and except as it498 applies to federal employers it does not provide for implementation by administrative action. A comparison of these provisions demonstrates that Congress understood accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.

Although an agency’s interpretation of the statute under which it operates is entitled to some deference, “this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history.” Here, neither the language, purpose, nor history of §504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds. Accordingly, we hold that even if HEW has attempted to create such an obligation itself, it lacks the authority to do so.

We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a State. Thus, situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory. Identification of those instances where a refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped continues to be an important responsibility of HEW.

In this case, however, it is clear that Southeastern’s unwillingness to make major adjustments in its nursing program does not constitute such discrimination. The uncontroverted testimony of several members of Southeastern’s staff and faculty established that the purpose of its program was to train persons who could serve the nursing profession in all customary ways. This type of purpose, far from reflecting any animus against handicapped individuals is shared by many if not most of the institutions that train persons to render professional service. It is undisputed that respondent could not participate in Southeastern’s nursing program unless the standards were substantially lowered. Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person.

One may admire respondent’s desire and determination to overcome her handicap, and there well may be various other types of service for which she can qualify. In this case, however, we hold that there was no violation of §504 when Southeastern concluded that respondent did not qualify for admission to its program. Nothing in the language or history of §504 reflects an intention to limit the freedom of an educational institution to require reasonable physical qualifications for admission to a clinical training program. Nor has there been499 any showing in this case that any action short of a substantial change in Southeastern’s program would render unreasonable the qualifications it imposed.

Accordingly, we reverse the judgment of the court below, and remand for proceedings consistent with this opinion.

So ordered.

NOTES AND QUESTIONS

1. Eligibility or entitlement? Is Davis about the eligibility of a student for protection under §504 or about what protections are afforded to eligible students? Recall that the definition of “qualified individual with a disability” brings into play reasonableness of modifications, making the interplay between eligibility and nondiscrimination circular. People are entitled to reasonable accommodations (nondiscrimination) but only if they can be accommodated reasonably (eligibility).

2. Otherwise qualified. While Davis established a definition of “otherwise qualified,” questions still remain. In C.O. v. Portland Public Schools, 679 F.3d 1162 (9th Cir. 2012), a child with special learning needs was denied admission to the magnet high school because he could not meet the academic requirements. The court held:

Whether a party may bring a damages action based upon the admissions policies of a magnet school is a question of first impression in this circuit, if not in this country, and thus we turn to the requirements of the Rehabilitation Act. “Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate,” but merely requires them not to exclude a person who is “otherwise qualified” based upon his or her disability. To be “otherwise qualified,” an individual must be “able to meet all of a program’s requirements in spite of his handicap. Though we do not read this to give schools leave to adopt requirements that are not reasonably related to the program at issue…it is not unreasonable to require a minimum of eighth grade proficiency from anyone who is applying to a magnet high school.

Id. at 1169; see also Brookhart v. Ill. State Bd. of Educ., 697 F.2d 179 (7th Cir. 1983) (holding that it was not discriminatory for a school board to require students with disabilities to pass a minimum competency test to graduate from high school because “a student who is unable to learn because of his handicap is surely not an individual who is qualified in spite of his handicap”). The reasonable accommodation requirement compels schools only to change the methods they use to measure students’ knowledge base; it does not compel schools to change their expectations regarding students’ knowledge base.

3. Is there a substantial modification limitation in K-12 education? Davis dealt with discrimination in higher education and accordingly cited to the Subpart E regulations of §504 covering postsecondary and vocational education. These regulations include a “reasonable accommodation” limitation just like Title II of the ADA. But the Subpart D regulations of §504, covering elementary and secondary education, do not contain a “reasonable accommodation” limitation500 and instead require schools to provide students with disabilities a “free appropriate public education” (FAPE) to fulfill their nondiscrimination obligation. 34 C.F.R. §104.33(a) (2000). What constitutes a FAPE is typically litigated under the IDEA and is discussed in detail in the next section.

Does the requirement in §504 that an elementary or a secondary school must provide a qualified student a FAPE mean that it must do so even if providing a FAPE would substantially modify the program? The Office of Civil Rights (OCR), in charge of enforcing §504 and the ADA, states that there is no “limitation of the FAPE guarantee” in §504. Letter to Zirkel, 20 IDELR 134 (OCR 1993). But courts and the OCR often apply the substantial modification analysis in determining whether accommodations must be provided for qualifying students with disabilities. For example, in D.R. v. Antelope Valley Union High School District, 746 F. Supp. 2d 1132, 1132 (C.D. Cal. 2010), an orthopedically impaired student was denied her request to use the elevator. Instead of asking whether the requested accommodation was necessary to provide a FAPE, the court held that providing the student an elevator key was not a fundamental alteration of the school program and the denial constituted discrimination under §504. See also C.C. ex rel. Ciriacks v. Cypress Sch. Dist., 56 IDELR 295 (C.D. Cal. 2011) (failure to allow service dog was discrimination because it was not a fundamental alteration to the autism program); Santa Clara Unified Sch. Dist., 53 IDELR 27 (OCR 2009) (OCR rejected a claim that providing special education services would substantially modify an education program, not because the defense was unavailable but because it lacked evidentiary support).

The confusion over whether §504 and the ADA include a substantial modification limitation or require the unqualified provision of FAPE has significant ramifications. Schools often deny admission to students with disabilities and refer them to regional programs because they lack adequate resources, facilities, or personnel to address every type of disability. This practice is particularly acute in charter schools, which underenroll students with disabilities compared to traditional public schools. U.S. Gov’t Accountability Office, Charter Schools: Additional Federal Attention Needed to Help Protect Access for Students with Disabilities (June 2012). If the substantial modification limitation applies to primary and secondary schools, schools may be appropriately denying admission to certain students with disabilities and referring them elsewhere. If schools must provide a FAPE without qualification, this practice may be prohibited. See, e.g., Barnett ex rel. Barnett v. Fairfax Cnty. Sch. Bd., 927 F.2d 146, 155 (4th Cir. 1991), cert. denied, 502 U.S. 859 (1991).

4. Defining “substantial modifications.” Davis holds that §504 does not compel educational institutions to make “substantial modifications” to their programs to allow students with disabilities to participate. But what is a substantial modification, and how should courts make this determination? Excusing students from the clinical aspects of their education was a substantial modification in Davis because the clinical training was essential and removing those requirements would fundamentally alter the program. The difficult question, particularly in specialized schools, is determining the essential nature of the program. For example, in Santa Clara Unified School District, 53 IDELR 27 (OCR 2009), the school denied admission to students with disabilities requiring a501 resource specialist program because, among other reasons, those services fundamentally altered the group instructional model used at the school. The OCR noted that the school already provided pull-out services such as counseling and English language learning. The OCR held that the essence of the school was not group instruction in all circumstances, and, even if it were, some students with disabilities could benefit from the methodology and a categorical ban was discriminatory.

Accommodations that result in an undue financial burden may also be substantial modifications that schools do not have to provide, though this has only been used to excuse the provision of nonacademic services such as transportation or medical training of staff. See, e.g., Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 973 (8th Cir. 1999) (holding that spending $24,000 on a special bus route to allow a disabled child to attend a non-neighborhood school as part of an intradistrict transfer program was an undue financial burden).

PROBLEM

Joe is a preschool student with Asperger’s syndrome who requires speech therapy, counseling, small class sizes with a full-time aide, and a structured and regimented learning environment. Joe’s parents want to enroll him in kindergarten at the New Beginnings Charter School. New Beginnings is a successful charter school that practices the Montessori method of teaching, relying primarily on guided free play and self-directed learning. Almost one-third of the school day is dedicated to nonstructured learning. New Beginnings also has very limited special education services and has never enrolled a child with Asperger’s syndrome. Must New Beginnings admit Joe and make the accommodations he requires?

2. Identification, Evaluation, and IEPs

The IDEA requires schools to take affirmative steps to educate eligible students with disabilities above and beyond the antidiscrimination provisions of §504 and the ADA. These obligations are extensive and require states and local educational agencies (LEAs) to identify and evaluate students with disabilities and provide each eligible student with an Individualized Education Plan (IEP), a free appropriate public education to students with disabilities, special education and related services in the least restrictive environment, and specific procedural protections in disciplinary procedures; in addition, parents are to receive an extensive array of procedural safeguards, including the right to contest educational decisions related to their child through due process hearings. Each of these obligations will be discussed in turn, beginning with the duty of LEAs to identify, evaluate, and create IEPs for students with disabilities.

The IDEA requires that “[a]ll children with disabilities residing in the State, including children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related502 services, are identified.” 20 U.S.C. §1412 (2006). States fulfill this affirmative “child find obligation” in a variety of ways, including conducting mass screening tests and receiving teacher, parent, and doctor referrals. Besides these broad-based efforts, districts must further evaluate children residing in the district who are suspected of needing special education. This includes children in private schools. Before an IDEA eligibility evaluation can occur, schools must obtain parental consent for the evaluation. If parents refuse to consent to evaluation, school officials may initiate a due process hearing to obtain permission for an evaluation from a hearing officer.

Eligibility evaluations under the IDEA must include a variety of assessment tools and strategies and evaluate the child in all areas of a suspected disability. Based on this data, as well as classroom assessments and information from parents, a determination is made by a multidisciplinary team concerning whether the child is eligible for IDEA services. If parents disagree with the evaluation, they can seek an independent educational evaluation (IEE) at public expense in certain circumstances. For example, in Seattle School District No. 1 v. B.S., 82 F.3d 1493 (9th Cir. 1996), the district evaluated a behaviorally and emotionally disabled child and proposed placing her into the regular education classroom with supports and services. The parents disagreed with the evaluation and sought an IEE at public expense and placement in a residential treatment facility. The Ninth Circuit held:

The district court and ALJ properly concluded that the School District failed to include on the assessment team anyone with knowledge in the disorders known to be the cause of A.S.’s problems. This was contrary to the School District’s duty to “ensure…[that the] evaluation [of the student] is made by a multidisciplinary team…including at least one teacher or other specialist with knowledge in the area of suspected disability.” Moreover, the School District failed to reconcile the parent’s experts’ recommendation that A.S. be placed in a residential facility. The District summarily concluded that a day program was educationally appropriate for A.S. without even addressing the fact that medical experts had concluded residential placement was necessary.

Because A.S.’s parent disagreed with the School District’s evaluation and the District was unable to establish the appropriateness of its evaluation, A.S. was entitled to an independent evaluation at public expense. 34 C.F.R. §300.503(b). Accordingly, the district court properly affirmed the ALJ’s order that the School District reimburse B.S. for the costs of Dr. Schoettle’s evaluation.

Id. at 1499-1500.

Parents can not only request an IEE at public expense, but they can challenge the resulting education plan for the child if the evaluation procedures in the IDEA are not strictly followed. For example, in Bonadonna v. Cooperman, 619 F. Supp. 401 (D.N.J. 1985), a district court invalidated the education plan proposed for a hearing-impaired child because the recommendations were based only on observation of the child, no validated instruments were used to test the child’s aptitude, the child was not assessed in all areas of suspected disability, and no member of the evaluation team was an expert in the education of hearing-impaired children.

If the evaluation team determines that a child is IDEA eligible, a team of educators and the parents must follow particularized procedures to create an503 IEP. The IEP is the basic plan of education for the child and is essentially the student’s curriculum for the year. It must include the student’s current educational performance, annual goals and short-term objectives, the extent to which the child can take part in general education, the date services are to begin and how long they will be offered, and the criteria to evaluate whether the student is achieving his or her goals. It must also describe any modifications the child may need to participate in the general classroom and curriculum. 20 U.S.C. §§1414(d)(1)(A) and 1401(3)(a) (2006). The child’s IEP is reviewed periodically, but not less than annually, to determine whether annual goals are being achieved.

There are very detailed procedural requirements for the creation of an IEP because it is the linchpin for services under the IDEA. See, e.g., 34 C.F.R. §§300.320-300.324 (2006). Parents often complain that these intricate procedures have not been followed and that the resulting IEP is defective. For example, in Burilovich v. Board of Education of Lincoln Consolidated Schools, 208 F.3d 560 (6th Cir. 2000), the parents of an autistic child complained that they were excluded from IEP meetings, that the district failed to consult with knowledgeable professionals before deciding placement, and that their son was not timely recertified as autistic. The Sixth Circuit’s holding gives a flavor of the detailed processes a district must follow in creating an IEP:

[P]laintiffs argue that they were denied meaningful parental participation in the IEPC process because they were not invited to two meetings in April 1996. Defendants counter that the meetings on April 16 and 26 were staff meetings that plaintiffs were not entitled to attend. The parents attended a December 1996 IEPC, strongly expressed their views at the March 1996 IEPC, had the opportunity to participate in the May 1996 IEPC, and also expressed their views through letters and telephone conversations with district staff. For these reasons, plaintiffs have failed to demonstrate that they were denied participation in the IEPC process.

Plaintiffs also argue that the district failed to consult with knowledgeable professionals regarding B.J.’s placement as required by the IDEA regulations. This court has rejected “the contention that [a school district] must include an expert in the particular teaching method preferred by the parents in order to satisfy the requirement that the IEPC include persons knowledgeable about ‘placement options.’ ”

Plaintiffs argue that the district did not conduct a required comprehensive evaluation of B.J. before making a significant change in his placement. As the district court pointed out, B.J. was evaluated in early 1996 and “neither plaintiffs nor defendants argue that a new evaluation would have yielded different results.” Plaintiffs suggest that the IEP failed to take B.J.’s unique needs into consideration, asserting that the district proposed the IEP because its personnel had insufficient experience for any other program. [But] the record indicates that [the school] still had concerns about [the parents’ suggested treatment,] even when it assumed that personnel could be properly trained.

The district court and the SHO correctly determined that defendants’ program took B.J.’s unique needs into consideration. As the district court pointed out, defendants’ program set goals for B.J. and created a detailed daily schedule to address each of the goals with a program including both group instruction and one-on-one therapy.

Id. at 568-571.

While the procedural requirements for IEP creation are important and fertile grounds for challenge by parents, the much more critical aspect of the504 IEP is whether it provides appropriate services for the child. That is the subject of the next section.

3. Free Appropriate Public Education

The most important obligation imposed on states by the IDEA is the duty to provide all eligible students a free appropriate public education (FAPE). 20 U.S.C. §1412(1) (2006). The IDEA defines FAPE as “special education and related services that: (A) have been provided at public expense, under public supervision and direction, without charge; (B) meet the standards of the State educational agency; (C) include an appropriate…education in the state involved; and (D) are provided in conformity with the individualized education program.…” Id. §1401(9). The most ambiguous, and most heavily litigated, term in the definition is “appropriate.” The Supreme Court defined an “appropriate education” in the landmark decision that follows. It held that schools do not have to maximize the potential of each disabled child. Rather, schools need only follow the procedures of the IDEA and create an IEP reasonably calculated to provide some educational benefit to students with disabilities.

Board of Education of the Hendrick Hudson Central School District v. Rowley

458 U.S. 176 (1982)

Justice Rehnquist delivered the opinion of the Court.

The Education of the Handicapped Act (Act), provides federal money to assist state and local agencies in educating handicapped children, and conditions such funding upon a State’s compliance with extensive goals and procedures. The Act represents an ambitious federal effort to promote the education of handicapped children, and was passed in response to Congress’ perception that a majority of handicapped children in the United States “were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’ ” The Act’s evolution and major provisions shed light on the question of statutory interpretation which is at the heart of this case.

In order to qualify for federal financial assistance under the Act, a State must demonstrate that it “has in effect a policy that assures all handicapped children the right to a free appropriate public education.” 20 U.S.C. §1412(1).

The “free appropriate public education” required by the Act is tailored to the unique needs of the handicapped child by means of an “individualized educational program” (IEP). §1401(18). The IEP, which is prepared at a meeting between a qualified representative of the local educational agency, the child’s teacher, the child’s parents or guardian, and, where appropriate, the child, consists of a written document containing “(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals,505 including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. §1401(19).”

Local or regional educational agencies must review, and where appropriate revise, each child’s IEP at least annually. §1414(a)(5). In addition to the state plan and the IEP already described, the Act imposes extensive procedural requirements upon States receiving federal funds under its provisions. Parents or guardians of handicapped children must be notified of any proposed change in “the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to such child,” and must be permitted to bring a complaint about “any matter relating to” such evaluation and education. §§1415(b)(1)(D) and (E). Complaints brought by parents or guardians must be resolved at “an impartial due process hearing,” and appeal to the state educational agency must be provided if the initial hearing is held at the local or regional level. §§1415(b)(2) and (c). Thereafter, “[a]ny party aggrieved by the findings and decision” of the state administrative hearing has “the right to bring a civil action with respect to the complaint…in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” §1415(e)(2).

This case arose in connection with the education of Amy Rowley, a deaf student at the Furnace Woods School in the Hendrick Hudson Central School District, Peekskill, N.Y. Amy has minimal residual hearing and is an excellent lipreader. [Amy was placed in the regular kindergarten class and provided an FM hearing aid, which would amplify words spoken into a wireless receiver. Amy successfully completed her kindergarten year. At the beginning of Amy’s first-grade year, an IEP was prepared providing that Amy should be educated in a regular classroom at Furnace Woods, should continue to use the FM hearing aid, and should receive instruction from a tutor for the deaf for one hour each day and from a speech therapist for three hours each week. The Rowleys agreed with parts of the IEP, but insisted that Amy also be provided a qualified sign-language interpreter in all her academic classes in lieu of the assistance proposed in other parts of the IEP. Without a sign-language interpreter, Amy comprehends less than half of what is said in the classroom.]

When their request for an interpreter was denied, the Rowleys demanded and received a hearing before an independent examiner. After receiving evidence from both sides, the examiner agreed with the administrators’ determination that an interpreter was not necessary because “Amy was achieving educationally, academically, and socially” without such assistance. Pursuant to the Act’s provision for judicial review, the Rowleys then brought an action in the United States District Court, claiming that the administrators’ denial of the sign-language interpreter constituted a denial of the “free appropriate public education.” The District Court found that Amy “performs better than the average child in her class and is advancing easily from grade to grade,” but “that she506 understands considerably less of what goes on in class than she could if she were not deaf” and thus “is not learning as much, or performing as well academically, as she would without her handicap.” This disparity between Amy’s achievement and her potential led the court to decide that she was not receiving a “free appropriate public education,” which the court defined as “an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children.” The District Court’s definition arose from its assumption that the responsibility for “giv[ing] content to the requirement of an ‘appropriate education’ ” had “been left entirely to the [federal] courts and the hearing officers.”

A divided panel of the United States Court of Appeals for the Second Circuit affirmed. We granted certiorari to review the lower courts’ interpretation of the Act. Such review requires us to consider two questions: What is meant by the Act’s requirement of a “free appropriate public education”? And what is the role of state and federal courts in exercising the review granted by 20 U.S.C. §1415? We consider these questions separately.

It is beyond dispute that, contrary to the conclusions of the courts below, the Act does expressly define “free appropriate public education”: “The term ‘free appropriate public education’ means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title.” §1401(18) (emphasis added).

“Special education,” as referred to in this definition, means “specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions.” §1401(16). “Related services” are defined as “transportation, and such developmental, corrective, and other supportive services…as may be required to assist a handicapped child to benefit from special education.” §1401(17).

Like many statutory definitions, this one tends toward the cryptic rather than the comprehensive, but that is scarcely a reason for abandoning the quest for legislative intent. Whether or not the definition is a “functional” one, as respondents contend it is not, it is the principal tool which Congress has given us for parsing the critical phrase of the Act. We think more must be made of it than either respondents or the United States seems willing to admit.

According to the definitions contained in the Act, a “free appropriate public education” consists of educational instruction specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child “to benefit” from the instruction. Almost as a checklist for adequacy under the Act, the definition also requires that such instruction and services be provided at public expense and under public supervision, meet the State’s educational standards, approximate the grade levels used in the State’s regular education, and comport with the child’s IEP. Thus, if personalized instruction is being provided with sufficient supportive services to507 permit the child to benefit from the instruction, and the other items on the definitional checklist are satisfied, the child is receiving a “free appropriate public education” as defined by the Act.

Noticeably absent from the language of the statute is any substantive standard prescribing the level of education to be accorded handicapped children. Certainly the language of the statute contains no requirement like the one imposed by the lower courts—that States maximize the potential of handicapped children “commensurate with the opportunity provided to other children.” Although we find the statutory definition of “free appropriate public education” to be helpful in our interpretation of the Act, there remains the question of whether the legislative history indicates a congressional intent that such education meet some additional substantive standard. For an answer, we turn to that history.

[F]ederal support for education of the handicapped is a fairly recent development. Before passage of the Act some States had passed laws to improve the educational services afforded handicapped children, but many of these children were excluded completely from any form of public education or were left to fend for themselves in classrooms designed for education of their nonhandicapped peers. [T]he House Report begins by emphasizing this exclusion and misplacement, noting that millions of handicapped children “were either totally excluded from schools or [were] sitting idly in regular classrooms awaiting the time when they were old enough to ‘drop out.’ ”

This concern, stressed repeatedly throughout the legislative history, confirms the impression conveyed by the language of the statute: By passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Indeed, Congress expressly “recognize[d] that in many instances the process of providing special education and related services to handicapped children is not guaranteed to produce any particular outcome.” Thus, the intent of the Act was more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside.

Respondents contend that “the goal of the Act is to provide each handicapped child with an equal educational opportunity.” We think, however, that the requirement that a State provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child’s potential “commensurate with the opportunity provided other children.” Respondents and the United States correctly note that Congress sought “to provide assistance to the States in carrying out their responsibilities under…the Constitution of the United States to provide equal protection of the laws.” But we do not think that such statements imply a congressional intent to achieve strict equality of opportunity or services.

The educational opportunities provided by our public school systems undoubtedly differ from student to student, depending upon a myriad of factors that might affect a particular student’s ability to assimilate information presented in the classroom. The requirement that States provide “equal”508 educational opportunities would thus seem to present an entirely unworkable standard requiring impossible measurements and comparisons. Similarly, furnishing handicapped children with only such services as are available to nonhandicapped children would in all probability fall short of the statutory requirement of “free appropriate public education”; to require, on the other hand, the furnishing of every special service necessary to maximize each handicapped child’s potential is, we think, further than Congress intended to go. Thus to speak in terms of “equal” services in one instance gives less than what is required by the Act and in another instance more. The theme of the Act is “free appropriate public education,” a phrase which is too complex to be captured by the word “equal” whether one is speaking of opportunities or services.

The District Court and the Court of Appeals thus erred when they held that the Act requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Desirable though that goal might be, it is not the standard that Congress imposed upon States which receive funding under the Act. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education.

Implicit in the congressional purpose of providing access to a “free appropriate public education” is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from that education. The statutory definition of “free appropriate public education,” in addition to requiring that States provide each child with “specially designed instruction,” expressly requires the provision of “such…supportive services…as may be required to assist a handicapped child to benefit from special education.” §1401(17) (emphasis added). We therefore conclude that the “basic floor of opportunity” provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.

The determination of when handicapped children are receiving sufficient educational benefits to satisfy the requirements of the Act presents a more difficult problem. The Act requires participating States to educate a wide spectrum of handicapped children, from the marginally hearing-impaired to the profoundly retarded and palsied. It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine our analysis to that situation.

509

The grading and advancement system constitutes an important factor in determining educational benefit. Children who graduate from our public school systems are considered by our society to have been “educated” at least to the grade level they have completed, and access to an “education” for handicapped children is precisely what Congress sought to provide in the Act.¹

When the language of the Act and its legislative history are considered together, the requirements imposed by Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a “free appropriate public education,” we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate the grade levels used in the State’s regular education, and must comport with the child’s IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

[The Court then identified the procedural safeguards of the Act and concluded that] when the elaborate and highly specific procedural safeguards embodied in §1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.

Therefore, a court’s inquiry in suits brought under §1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act’s procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

We previously have cautioned that courts lack the “specialized knowledge and experience” necessary to resolve “persistent and difficult questions of educational policy.” We think that Congress shared that view when it passed the Act. As already demonstrated, Congress’ intention was not that the Act displace510 the primacy of States in the field of education, but that States receive funds to assist them in extending their educational systems to the handicapped. Therefore, once a court determines that the requirements of the Act have been met, questions of methodology are for resolution by the States.

Applying these principles to the facts of this case, we conclude that the [lower courts] erred. Neither the District Court nor the Court of Appeals found that petitioners had failed to comply with the procedures of the Act, and the District Court found that the “evidence firmly establishes that Amy is receiving an ‘adequate’ education, since she performs better than the average child in her class and is advancing easily from grade to grade.” The lower courts should not have concluded that the Act requires the provision of a sign-language interpreter. Accordingly, the decision of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justice White, with whom Justice Brennan and Justice Marshall join, dissenting.

It would apparently satisfy the Court’s standard of “access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child,” for a deaf child such as Amy to be given a teacher with a loud voice, for she would benefit from that service. The Act requires more. It defines “special education” to mean “specifically designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child.…” §1401(16) (emphasis added). Providing a teacher with a loud voice would not meet Amy’s needs and would not satisfy the Act. The basic floor of opportunity is instead intended to eliminate the effects of the handicap, at least to the extent that the child will be given an equal opportunity to learn if that is reasonably possible. Amy Rowley, without a sign-language interpreter, comprehends less than half of what is said in the classroom—less than half of what normal children comprehend. This is hardly an equal opportunity to learn, even if Amy makes passing grades.

NOTES AND QUESTIONS

1. Access and equality. The Rowley court refused to find that FAPE meant maximizing each disabled child’s potential, instead opting for a standard of access and “some educational benefit.” The Sixth Circuit summarized this low FAPE standard as requiring schools to “provide the educational equivalent of a serviceable Chevrolet…[and not] a Cadillac.…” Doe ex rel. Doe v. Bd. of Educ., 9 F.3d 455, 459 (6th Cir. 1993). What are the justifications the Court used to find FAPE requires such a low access standard? Do you think cost played a role in formulating the lower standard? Is the “floor of opportunity” presented by the majority in reality a ceiling? The dissenters in Rowley thought FAPE required an equality standard—that schools had to provide students with disabilities educational opportunities commensurate with those of their peers who are not disabled. Is this higher standard justified by congressional intent and the language of the IDEA? How might this interpretation have changed the face of special education? Of general education?

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2. State standards. The Supreme Court in Rowley recognized that while the federal FAPE standard did not require maximizing a child’s potential, states and local school districts could require higher standards than the federal scheme. See, e.g., Soraruf v. Pinckney Cmty. Sch., 208 F.3d 215 (6th Cir. 2000) (Michigan law, but not the IDEA, requires services allowing students to reach their “maximum” potential”); Pink by Crider v. Mt. Diablo Sch. Dist., 738 F. Supp 345 (N.D. Cal. 1990) (California law requires services designed to allow students to achieve their “full potential”). Is it prudent to allow states to create their own FAPE standards? If some states are effectively employing a maximizing standard, does that undercut any of the rationale of the Rowley majority opinion?

3. The federal FAPE standard. Rowley created a two-part test to determine whether FAPE has been provided: (1) Has the state complied with the procedures identified in the Act? (2) Is the IEP as developed through these procedures reasonably calculated to enable the child to receive some educational benefit? Both elements are equally important, and parents carry the burden of showing a denial of FAPE. Schaffer v. Weast, 546 U.S. 49 (2005). Many courts find that failure to comply with the procedures of the Act, even if the child is receiving some educational benefit, is a denial of FAPE. See, e.g., Jackson v. Franklin Cnty. Sch. Bd., 806 F.2d 623 (5th Cir. 1986); Hall v. Vance Cnty. Bd. of Educ., 774 F.2d 629 (4th Cir. 1985). But often procedural violations are found to be de minimis, and the focus of the analysis hinges on whether a child has received educational benefit from his IEP. But how much educational benefit is sufficient? Some courts require a low “some educational benefit” whereas others require a higher “meaningful educational benefit.” Compare Lt. T.B. ex rel. N.B. v. Warwick Sch. Comm., 361 F.3d 80, 83 (1st Cir. 2004), to Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 247-248 (3d Cir. 1999). Which interpretation finds stronger support in Rowley? For a thorough discussion of lower courts’ treatment of the FAPE standard, see Ronald D. Wenkart, The Rowley Standard: A Circuit by Circuit Review of How Rowley Has Been Interpreted, 247 Educ. L. Rep. 1 (2009).

4. Comparing FAPE under §504 and the IDEA. Recall from above that children eligible under §504 are also entitled to a FAPE. The §504 regulations define appropriate education as “the provision of regular or special education and related aids and services that [] are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met.…” 34 C.F.R. §104.33(b)(1) (2000). Does the “as adequately” language mean that §504 applies the standard employed by the lower court in Rowley but that the Supreme Court rejected? The Ninth Circuit held that the appropriate education duty under §504 and the IDEA are different and that §504 requires “a comparison between the manner in which the needs of the disabled and non-disabled children are met.…” But it also noted, for students that were eligible under both the IDEA and §504, that adopting a valid IEP under the IDEA “is sufficient but not necessary to satisfy” §504’s appropriate education requirement. Mark H., 513 F.3d 922, 933 (9th Cir. 2008). For a general discussion of the FAPE requirement under §504 and how it differs from the IDEA, see Mark C. Weber, A New Look at Section 504 and the ADA in Special Education Cases, 16 Tex. J. C.L. & C.R. 1, 10-20 (2010).

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5. Accountability and FAPE. The No Child Left Behind Act (NCLB) was passed in 2002 and promised a high-quality education to all students, including students with disabilities. The NCLB, now the ESSA, requires that state plans under that Act be coordinated with the IDEA. 20 U.S.C. §6311(a)(1) (2015). In 2004, the IDEA was amended to align it with NCLB. The changes ensured that students with disabilities would be included in NCLB assessments, id. §1412(a)(16), and that performance goals for children with disabilities were consistent with state standards for all children, id. §1412(a)(15); 34 C.F.R. §300.39(b)(3)(ii). The purpose was to ensure that students with disabilities would get access to the general curriculum or schools would suffer consequences under the NCLB. Scholars argued that passage of the NCLB and the later amendments to the IDEA implicitly altered the Rowley FAPE standard. See, e.g., Scott F. Johnson, Reexamining Rowley: A New Focus in Special Education Law, 2003 BYU Educ. & L.J. 574 (2003); Andrea Valentino, The Individuals with Disabilities Education Improvement Act: Changing What Constitutes an “Appropriate” Education, 20 J.L. & Health 139 (2007). But courts steadfastly rejected these arguments and continued to apply the “some educational benefit” standard. See, e.g., K.C. v. Mansfield Indep. Sch. Dist., 618 F. Supp. 2d 568, 575-576 (N.D. Tex. 2009); Leighty ex rel. Leighty v. Laurel Sch. Dist., 457 F. Supp. 2d 546, 561 (W.D. Pa. 2006).

Does a disabled student’s failure on an NCLB (now ESSA) assessment establish that a child is not receiving a FAPE? Is it relevant at all to the FAPE determination? Shouldn’t FAPE mean that a student with disabilities can pass the minimum academic competency standards set by the state as required by the ESSA? Is it incongruous to require that children with disabilities perform to the same level as children in general education through the ESSA, but deny them a substantive right to an equal education under the IDEA? The outcome accountability movement, highlighted by the NCLB and ESSA, cares about academic outcomes such as performance on standardized tests and graduation rates. Should the FAPE standard in the IDEA, which predates the accountability movement by several decades, remain static and focused almost entirely on procedural compliance with little regard to the academic outcomes of students with disabilities?

PROBLEM

Jane is a girl of average intelligence with severe learning disabilities, primarily affecting her ability to read and write. In eighth grade, Jane’s IEP included specialized instruction in reading, writing, and math and accommodations including a peer note taker, peer/adult reader, oral exams, extended time for testing and assignments, reduced assignments, and the use of a calculator. Often, someone else would do the reading and writing for Jane as an accommodation. At the end of her eighth-grade year, Jane scored in the 2nd percentile on standardized reading tests. She did not meet any of her IEP objectives in writing and met two of four objectives in reading. Jane received a B in special education language arts, a B+ in special education mathematics, an A in special education structured study, an A in general education science, an A in general education social studies, and a “pass” as a teacher’s assistant. Jane’s IEP513 did not change in ninth grade. At the end of the year, she scored in the 1st percentile on standardized reading tests. She again made progress on IEP goals, but did not meet any of her IEP writing objectives, and met only one of three reading objectives. Jane received a B in special education English foundations, an A– in special education mathematics, a C+ in general education history, a B in general education chemistry, and an A as a teacher’s assistant. Jane’s parents reported a steep decline in their daughter’s self-esteem and confidence with a corresponding reluctance to participate in her education during this time. Has the school provided Jane with a free appropriate public education under the IDEA?

Students with disabilities are disproportionately harassed, bullied, and sexually abused at school. An excerpt from the next case shows the scope of the problem:

Studies have shown that students with a disability, whether it is visible or non-visible, are subject to increased bullying that is often directed at the disability. These students are also at more risk for bullying directed at factors other than their disability. Harassing conduct may take many forms, including verbal acts and name-calling, as well as nonverbal behavior, such as graphic written statements, or conduct that is physically threatening, harmful, or humiliating.

Overall, students with disabilities are less popular, have fewer friends, and struggle more with loneliness and peer rejection, increasing the likelihood they will become the victim of bullying. Students who suffer from learning disabilities and emotional disorders often lack social awareness, which makes them more vulnerable.

T.K. & S.K. ex rel. LK v. N.Y.C. Dep’t of Educ., 779 F. Supp. 2d 289, 302-303 (E.D.N.Y 2011). Considering that students with disabilities are a primary target of bullying, it is no surprise that many have filed lawsuits claiming that bullying denies them a FAPE. The difficult issue in these cases is whether bullying is a denial of a FAPE if the child continues to receive “some educational benefit” from their educational programming despite the bullying. The next case, a seminal decision on the bullying of the disabled, holds that in certain circumstances a district’s failure to respond to bullying is a denial of a FAPE.

T.K. & S.K. ex rel. LK v. New York City Department of Education

779 F. Supp. 2d 289 (E.D.N.Y. 2011)

Jack B. Weinstein, Senior District Judge:

This case presents the largely unresolved issue of the extent to which bullying by other students inhibits a disabled child from being educated appropriately, and what her school must do about it.

The primary complaint is that L.K. was deprived of an appropriate education because her assigned public school did nothing to prevent her from being so bullied by other students as to seriously reduce the opportunity for an appropriate education. Such a contention apparently has not yet been ruled upon by the Court of Appeals for the Second Circuit. For the reasons stated below, the514 issue requires a court evidentiary hearing, and, a possible remand to the state authorities for a rehearing.

II. Facts

L.K. is a 12-year-old girl who was originally diagnosed as autistic [and] complained to her parents almost daily about being bullied at school. Her father insists that this constant bullying made her “emotionally unavailable to learn.”

L.K. was ostracized in the classroom and the subject of ridicule from other students. [The classroom was] a “hostile environment” in which she was simply “just trying to get…by each day.” [T]here was a great deal of teasing of L.K., with other children physically backing away to avoid her. [T]here was “constant negative interaction” between L.K. and other students on a daily basis. Other children would intentionally stay away from L.K. and at times physically push her away for fun.

Specific incidents of bullying include: a drawing in the record made by a student in L.K.’s class depicting L.K. in a disparaging light; a student chasing L.K. with what he claimed was blood but was in fact ketchup; other students refusing to touch things once L.K. had; and a prank phone call made to L.K.’s home, which the school was informed about.

L.K.’s parents maintain that bullying caused their daughter to resist attending school, hurt her academic performance, and damaged her emotional well-being. The DOE points to progress reports showing L.K.’s academic progress and portraying her as an enthusiastic classroom participant.

Bullying and the IDEA

While the general requirements of the IDEA are well established, the question of whether bullying can be grounds for finding that a school district deprived a student of a free and appropriate education is an open question in the Second Circuit. There is, however, some indication from this circuit’s court of appeals that it might be willing to extend FAPE protections to bullying. Three other circuit courts of appeals have expressly noted that bullying can be a basis for denial of a FAPE, but a common framework under which to analyze the issue has not emerged. See M.L. v. Fed. Way. Sch. Dist., 394 F.3d 634 (9th Cir. 2005); Shore Regional High Sch. Bd. of Ed. v. P.S., 381 F.3d 194 (3d Cir. 2004); Charlie F. ex rel. Neil F. v. Bd. of Educ., 98 F.3d 989, 993 (7th Cir. 1996).

In finding that a student was denied a free and appropriate public education due to bullying, the Court of Appeals for the Third Circuit did not provide the rubric under which it analyzed the plaintiff’s claims. Instead it looked at the alleged conduct to find that the lack of a school environment free from harassment was grounds for finding a denial of FAPE.

The Court of Appeals for the Ninth Circuit has developed a test, which asks whether a teacher was deliberately indifferent to bullying and the abuse so severe that a child can derive no educational benefit.

This test is too rigid and too narrow. It fails to acknowledge that a student may have her academic success stunted as a result of harassment, but still515 achieve some success. A student who received some educational benefit despite bullying might have received more if not faced with the serious obstacle of peer harassment.

Because the federal appellate courts have not articulated a uniform test, legal theories used in the context of Title IX, substantive due process and equal protection must be examined to test their applicability in determining if bullying can be a basis for a denial of a FAPE.

The rule to be applied is as follows: When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if the harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future.

It is not necessary to show that the bullying prevented all opportunity for an appropriate education, but only that it is likely to affect the opportunity of the student for an appropriate education. The bullying need not be a reaction to or related to a particular disability.

T.K. has provided evidence of each element of the test. First, her parents have produced witnesses who have testified that L.K., a student with disability, was isolated and the victim of harassment from her peers. The school denies these allegations. The IHO erred in finding that bullying went to placement and not to the adequacy of a program, and in making judgment about the veracity of the witnesses’ accounts. A fact finder could conclude on this record that L.K. was the victim of bullying.

Second, the parents allege that they sent letters and tried to speak to the principal about the issue. There is evidence on both sides. No determination was made by the IHO about whether school personnel had notice of substantial bullying.

Third, L.K. presents evidence that could reasonably be construed as proving the school’s failure to take reasonable steps to address the harassment. The school has not provided documentation that it either investigated claims of bullying or took steps to remedy the conduct. This evidence was not touched upon by the fact finder.

Fourth, L.K.’s parents state that she withdrew emotionally, did not want to go to school, and suffered social scars as a result of the bullying. The school district refutes this by pointing to academic progress for L.K. Whether the harassment rose to a level that deprived L.K. of an educational benefit was not decided in the administrative hearings. A student is not required to prove that she was denied all educational benefit. She may not be deprived of her entire educational benefit, but still may suffer adverse educational effects as a result of bullying. To be denied educational benefit, a student need not regress, but need only have her educational benefit adversely affected.

Academic growth is not an all-or-nothing proposition. There are levels of progress. A child may achieve substantial educational gains despite harassment, and yet she still may have been seriously hindered. Growth may be stunted providing an education below the level contemplated by the IDEA. In New York, IEP’s are required to give children more than an opportunity for516 just “trivial advancement.” The law recognizes that a student can grow academically, but still be denied the educational benefit that is guaranteed by the IDEA. Where bullying reaches a level where a student is substantially restricted in learning opportunities she has been deprived a FAPE. Whether bullying rose to this level is a question for the fact finder.

The IHO and the SRO both touched upon the issue of bullying, but they did not apply the proper standard. The IDEA gives a court broad authority to grant appropriate relief. The motion of defendant for summary judgment dismissing the case is denied.

NOTES AND QUESTIONS

1. Altering the FAPE standard. In T.K., the child was performing well in school despite the bullying, but the court nevertheless held that bullying denied her a FAPE because it “adversely affected” her learning. Does this change the definition of FAPE to a maximization standard? Did the student not receive “educational benefit” despite the bullying? In 2013 the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) issued a Dear Colleague Letter explaining that “[w]hether or not the bullying is related to the student’s disability, any bullying of a student with a disability that results in the student not receiving meaningful educational benefit constitutes a denial of FAPE under the IDEA that must be remedied.” OSERS 2013 Dear Colleague Letter on Bullying of Students with Disabilities, http://www.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.doc. Is the T.K. standard consistent with the guidance from OSERS? The Second Circuit affirmed the T.K. decision on the grounds that the district’s refusal to discuss the bullying of L.K. in IEP meetings was a procedural violation that denied L.K. a FAPE and expressed no opinion in the district court’s four-part test. 810 F.3d 869 (2nd Cir. 2016).

2. Applying the T.K. standard. In K.W. ex rel. Brown v. City of New York, 275 F.R.D. 393 (E.D.N.Y. 2011), a nondisabled kindergarten student had her hair pulled, a braid cut off, her lunch stolen, and was kicked and elbowed, all of which led her to fear going to school. The same judge that decided T.K. held that there were no constitutional violations, even though the school took no action to stop the bullying. Is the result different because the child was not disabled or because, in the words of the court, there “are not facts of shocking bullying”? Should the standard be different for disabled and nondisabled students?

3. Other approaches. Some courts find that bullying and assaults bear no relation to an IEP and do not fall within the purview of the IDEA, Smith v. Port Hope Sch. Dist., 2007 WL 2261419, at **11-12 (E.D. Mich. Aug. 6, 2007), or that bullying simply does deny an appropriate education, Smith v. Guilford Bd. of Educ., 2005 WL 3211449, at *7 (D. Conn. Nov. 30, 2005). Is bullying really a FAPE issue, or is it better redressed by other areas of law such as Title IX, equal protection, or due process? For a discussion about the possible claims students with disabilities can bring due to bullying and the various standards applied by courts, see Cynthia A. Dietrich et al., 2015 B.Y.U Educ. & L. J. 107 (2015).

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4. Litigation floodgates. Will the T.K. decision open the floodgates of litigation because bullying is so pervasive in our schools? Judge Weinstein thought not because “this test requires that a student have a disability since recovery is under the IDEA” and “this test merely requires schools do what the Department of Education has told them to do for years. Application of the test is unlikely to substantially increase the cost of special education.” 779 F. Supp. 2d at 318. Do you agree?

4. Special Education and Related Services

The IDEA requires states and local educational agencies to provide special education and related services to eligible students. “Special education” is defined as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability.…” 20 U.S.C. §1401(25) (1997). “Specially designed instruction” means “adapting…the content, methodology, or delivery of instruction (i) to address the unique needs of the child that result from the child’s disability; and (ii) to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. §300.26(b)(3) (2003). In short, special education is the adaptation of the content, methodology, or delivery of instruction to address a child’s unique needs and to ensure access to the general curriculum. It is agreed that services such as habilitative services and basic life skills training are special education, whereas the provision of aides and technology, or allowing oral tests or extended test times are uniformly not considered special education. But there is little other agreement on what constitutes special education, and courts and hearing officers often reach inconsistent results. For an in-depth discussion of cases defining special education, see Robert Garda, Jr., The New IDEA: Shifting Educational Paradigms to Achieve Racial Equality in Special Education, 56 Ala. L. Rev. 1071 (2005). Litigation over the meaning of “special education” arises in the eligibility context because, as discussed above, a student is only IDEA eligible if he or she needs “special education.”

It is not enough that a school district provide special education to eligible students; the IDEA also requires the provision of “related services” so the child can benefit from special education. “Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education.…” 34 C.F.R. §300.34(a) (2006); 20 U.S.C. §1401(26) (2006). These services include, but are not limited to,

speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training.

34 C.F.R. §300.34(a).

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While schools must provide related services, they are exempt from providing “medical services” beyond those needed for an initial diagnosis for eligibility. Because of the high cost of providing medical services to eligible students, there is often controversy over whether schools must pay for such services as “related services.” The line between health services required as related services and medical services that are not required was the issue in Irving Independent School District v. Tatro, 468 U.S. 883 (1984), where a student requested that the school nurse provide clean intermittent catheterization (CIC) during school hours. The Court first held that CIC is a “related service” because it is a “‘supportive servic[e]…required to assist a handicapped child to benefit from special education.’ It is clear on this record that, without having CIC services available during the school day, Amber cannot attend school and thereby ‘benefit from special education.’ CIC services therefore fall squarely within the definition of a ‘supportive service.’” Relying on Department of Education Regulations interpreting the IDEA, the Court next held that “the services of a school nurse otherwise qualifying as a ‘related service’ are not subject to exclusion as a ‘medical service,’ but that the services of a physician are excludable as such.” Id. at 892. The Court was mindful of the district’s concern that a narrow reading of the “medical services” exception may require schools to provide expensive treatments by noting

several limitations that should minimize the burden petitioner fears. First, to be entitled to related services, a child must be handicapped so as to require special education. In the absence of a handicap that requires special education, the need for what otherwise might qualify as a related service does not create an obligation under the Act.

Second, only those services necessary to aid a handicapped child to benefit from special education must be provided, regardless how easily a school nurse or layperson could furnish them. For example, if a particular medication or treatment may appropriately be administered to a handicapped child other than during the school day, a school is not required to provide nursing services to administer it.

Third, the regulations state that school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician. It bears mentioning that here not even the services of a nurse are required; as is conceded, a layperson with minimal training is qualified to provide CIC.

Finally, we note that respondents are not asking petitioner to provide equipment that Amber needs for CIC. They seek only the services of a qualified person at the school.

Id. at 894-895. Considering that the student in Tatro needed CIC regardless of whether she was in school or not, how did the Court find that CIC was educationally related? Would the same analysis apply if the student needed equipment such as hearing aids, eyeglasses, or a wheelchair instead of a service? Should schools have to provide these “related services,” even though they primarily benefit the child outside of school?

The Supreme Court further defined “related services” under the IDEA in the Garret F. case, which held that extensive services required for a quadriplegic to attend school are related services that must be provided rather than excluded medical services. Pay special attention to the Court’s treatment of Tatro in this case.

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Cedar Rapids Community School District v. Garret F.

526 U.S. 66 (1999)

Justice Stevens delivered the opinion of the Court.

The Individuals with Disabilities Education Act (IDEA) was enacted, in part, “to assure that all children with disabilities have available to them…a free appropriate public education which emphasizes special education and related services designed to meet their unique needs.” Consistent with this purpose, the IDEA authorizes federal financial assistance to States that agree to provide disabled children with special education and “related services.” The question presented in this case is whether the definition of “related services” in [§1401(a)(26)] requires a public school district in a participating State to provide a ventilator-dependent student with certain nursing services during school hours.

Respondent Garret F. is a friendly, creative, and intelligent young man. When Garret was four years old, his spinal column was severed in a motorcycle accident. Though paralyzed from the neck down, his mental capacities were unaffected. He is able to speak, to control his motorized wheelchair through use of a puff and suck straw, and to operate a computer with a device that responds to head movements. Garret is currently a student in the Cedar Rapids Community School District (District), he attends regular classes in a typical school program, and his academic performance has been a success. Garret is, however, ventilator dependent,² and therefore requires a responsible individual nearby to attend to certain physical needs while he is in school.³

During Garret’s early years at school his family provided for his physical care during the schoolday. When he was in kindergarten, his 18-year-old aunt attended him; in the next four years, his family used settlement proceeds they received after the accident, their insurance, and other resources to employ a licensed practical nurse. In 1993, Garret’s mother requested the District to accept financial responsibility for the health care services that Garret requires during the schoolday. The District denied the request, believing that it was not legally obligated to provide continuous one-on-one nursing services.

[Garret’s mother contested this decision in a due process hearing. At the hearing, the District did not contend that only a licensed physician could provide the services in question. The Administrative Law Judge (ALJ) held that the District must bear financial responsibility for all of the services, including520 continuous nursing services, because they were “related services” that did not fall within the “medical services” exclusion. The federal District Court denied the District’s challenge to the ruling and granted summary judgment against the District. The Court of Appeals affirmed.]

The Court of Appeals read our opinion in Irving Independent School Dist. v. Tatro to provide a two-step analysis of the “related services” definition in §1401(a)(17)—asking first, whether the requested services are included within the phrase “supportive services”; and second, whether the services are excluded as “medical services.” The Court of Appeals succinctly answered both questions in Garret’s favor.

The District contends that §1401(a)(17) does not require it to provide Garret with “continuous one-on-one nursing services” during the schoolday, even though Garret cannot remain in school without such care. However, the IDEA’s definition of “related services,” our decision in Irving Independent School Dist. v. Tatro, and the overall statutory scheme all support the decision of the Court of Appeals.

The text of the “related services” definition broadly encompasses those supportive services that “may be required to assist a child with a disability to benefit from special education.” As we have already noted, the District does not challenge the Court of Appeals’ conclusion that the in-school services at issue are within the covered category of “supportive services.” As a general matter, services that enable a disabled child to remain in school during the day provide the student with “the meaningful access to education that Congress envisioned.”

This general definition of “related services” is illuminated by a parenthetical phrase listing examples of particular services that are included within the statute’s coverage. §1401(a)(17). “[M]edical services” are enumerated in this list, but such services are limited to those that are “for diagnostic and evaluation purposes.” Ibid. The statute does not contain a more specific definition of the “medical services” that are excepted from the coverage of §1401(a)(17).

The scope of the “medical services” exclusion is not a matter of first impression in this Court. In Tatro we concluded that the Secretary of Education had reasonably determined that the term “medical services” referred only to services that must be performed by a physician, and not to school health services. Accordingly, we held that a specific form of health care (clean intermittent catheterization) that is often, though not always, performed by a nurse is not an excluded medical service. We referenced the likely cost of the services and the competence of school staff as justifications for drawing a line between physician and other services but our endorsement of that line was unmistakable. It is thus settled that the phrase “medical services” in §1401(a)(17) does not embrace all forms of care that might loosely be described as “medical” in other contexts, such as a claim for an income tax deduction.

The District does not ask us to define the term so broadly. Indeed, the District does not argue that any of the items of care that Garret needs, considered521 individually, could be excluded from the scope of 20 U.S.C. §1401(a)(17). It could not make such an argument, considering that one of the services Garret needs (catheterization) was at issue in Tatro, and the others may be provided competently by a school nurse or other trained personnel. As the ALJ concluded, most of the requested services are already provided by the District to other students, and the in-school care necessitated by Garret’s ventilator dependency does not demand the training, knowledge, and judgment of a licensed physician. While more extensive, the in-school services Garret needs are no more “medical” than was the care sought in Tatro.

Instead, the District points to the combined and continuous character of the required care, and proposes a test under which the outcome in any particular case would “depend upon a series of factors, such as [1] whether the care is continuous or intermittent, [2] whether existing school health personnel can provide the service, [3] the cost of the service, and [4] the potential consequences if the service is not properly performed.”

The District’s multifactor test is not supported by any recognized source of legal authority. The proposed factors can be found in neither the text of the statute nor the regulations that we upheld in Tatro. Moreover, the District offers no explanation why these characteristics make one service any more “medical” than another. The continuous character of certain services associated with Garret’s ventilator dependency has no apparent relationship to “medical” services, much less a relationship of equivalence. Continuous services may be more costly and may require additional school personnel, but they are not thereby more “medical.” Whatever its imperfections, a rule that limits the medical services exemption to physician services is unquestionably a reasonable and generally workable interpretation of the statute. Absent an elaboration of the statutory terms plainly more convincing than that which we reviewed in Tatro, there is no good reason to depart from settled law.

Finally, the District raises broader concerns about the financial burden that it must bear to provide the services that Garret needs to stay in school. The problem for the District in providing these services is not that its staff cannot be trained to deliver them; the problem, the District contends, is that the existing school health staff cannot meet all of their responsibilities and provide for Garret at the same time. Through its multifactor test, the District seeks to establish a kind of undue-burden exemption primarily based on the cost of the requested services. The first two factors can be seen as examples of cost-based distinctions: Intermittent care is often less expensive than continuous care, and the use of existing personnel is cheaper than hiring additional employees. The third factor-the cost of the service-would then encompass the first two. The relevance of the fourth factor is likewise related to cost because extra care may be necessary if potential consequences are especially serious.

The District may have legitimate financial concerns, but our role in this dispute is to interpret existing law. Defining “related services” in a manner that accommodates the cost concerns Congress may have had is altogether different from using cost itself as the definition. Given that §1401(a)(17) does not employ cost in its definition of “related services” or excluded “medical services,” accepting the District’s cost-based standard as the sole test for determining the scope of522 the provision would require us to engage in judicial lawmaking without any guidance from Congress. It would also create some tension with the purposes of the IDEA. The statute may not require public schools to maximize the potential of disabled students commensurate with the opportunities provided to other children, see Rowley; and the potential financial burdens imposed on participating States may be relevant to arriving at a sensible construction of the IDEA, see Tatro. But Congress intended “to open the door of public education” to all qualified children and “require[d] participating States to educate handicapped children with nonhandicapped children whenever possible.”

This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained. It is undisputed that the services at issue must be provided if Garret is to remain in school. Under the statute, our precedent, and the purposes of the IDEA, the District must fund such “related services” in order to help guarantee that students like Garret are integrated into the public schools.

The judgment of the Court of Appeals is accordingly affirmed.

NOTES AND QUESTIONS

1. Severe handicaps and cost. As noted by the Supreme Court, Congress has mandated that all disabled children must receive special education and related services at public expense. Even severely disabled and multiply handicapped children who cannot benefit from special education are eligible and must be provided services. Timothy W. v. Rochester N.H. Sch. Dist., 875 F.2d 954 (1st Cir. 1989). Considering that all students with disabilities must be served without regard to cost, or even if they cannot benefit, does it make sense to consider cost in deciding what related services a school must provide? The school district in Garret F. proposed a multifactor test that included cost for courts to use in deciding what constitutes necessary related services. The Supreme Court rejected this test but indicated that it would be appropriate to define related services “in a manner that accommodates the cost concerns” Congress may have had (emphasis in original). What cost concerns might Congress have had that would help define “related services”?

2. General education versus special education. Parents of students who do not receive special education often feel that the costs of educating the disabled cut into the general education budget. The average per capita spending on special education students is more than twice the average per capita spending on general education students. Thomas Parrish et al., State Special Education Finance Systems, 1999-2000: Part II: Special Education Revenues and Expenditures (2004). The friction caused by these disparate costs increases when severely disabled students, such as Garret F., are enrolled in a school. The IDEA also includes a “maintenance of effort” clause prohibiting states from reducing special education funding below the preceding fiscal year. 20 U.S.C. §1412(a)(18)(A) (2006). In other words, when education budgets must be reduced, as they recently have, the IDEA prohibits cuts from special education, further increasing the tension between general education and special education parents. Many have called for523 repeal of the “maintenance of effort” requirement because special education spending, as a percentage of total per-pupil spending, has increased from 3.7 percent in 1967 to roughly 21 percent by 2005. See, e.g., Nathan Levenson, Boosting the Equality and Efficiency of Special Education 9, 32 (Thomas B. Fordham Inst. 2012).

PROBLEM

Joe is a ninth grader diagnosed with attention deficit disorder, oppositional defiant disorder, bipolar disorder, and separation anxiety disorder. Recently, he has had a dramatic increase in psychotic events, severe anger problems, the abuse of chemical substances, and self-harming behaviors. He arrives at school late, leaves school early, and is often aggressive toward his teachers and threatens violence. Joe’s parents want to place him in a psychiatric residential treatment center for intensive individual and group psychotherapy for his own safety and so that he can properly participate in school again. Must the school district pay for Joe’s psychiatric hospitalization?

5. Least Restrictive Environment

The IDEA compels districts to provide FAPE in the “least restrictive environment” (LRE). This presumption of educating students in the regular classroom is often referred to as mainstreaming or inclusion. But the LRE obligation is not only about mainstreaming; it also requires that states offer a full continuum of alternative educational placements, such as general classes with supportive services, special education classes, or even special education schools. In the next two excerpts, two heavyweights in the special education field, Professors Colker and Weber, disagree about how these two facets of the LRE requirement should be applied. Professor Colker argues that the integration presumption created by the LRE requirements of the IDEA should be abandoned for an individualized approach. Professor Weber counters that the integration presumption should remain, especially when parents seek integrated settings, and the focus should be on providing sufficient supports to ensure students with disabilities can succeed in the general classroom.

Ruth Colker, The Disability Integration Presumption: Thirty Years Later

154 U. Pa. L. Rev. 789 (2006)

[A] presumption that children should be educated in the most integrated setting possible—what is also called “the least restrictive environment”—has led to a sharp increase in the number of children with disabilities who are educated in the regular classroom. The percentage of students with learning disabilities who were educated entirely in regular classrooms increased by nearly524 twenty percent between 1986 and 1996, while the percentage of students receiving educational services in resource rooms or separate classrooms decreased substantially. The integration presumption, however, has led to more than the closing of disability-only institutions. It has also come to mean that school districts should presumptively favor educating children in the regular public school classroom over other educational configurations within the regular public school, such as pull-out programs, resource rooms, or special education classes. This Article will question this aspect of the integration presumption because, for some children, it hinders the development of an appropriate individualized educational program (IEP) as required by the IDEA.

I. The Integration Presumption Under the IDEA

In order for states to receive funding under the IDEA, they must meet various criteria, including compliance with the integration presumption rule, which states: “To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

Implementation of the integration presumption has been complicated, with disputes frequently arising concerning the education of children with significant cognitive or mental health impairments. The courts have varied in their willingness to implement the integration presumption in these contexts. These inconsistent results suggest the need for clearer, national guidelines that are consistent with sound educational policy.

1. Rigid Application of the Integration Presumption

The most rigid example of the application of the integration presumption comes from a Sixth Circuit case in which it appears that application of the integration presumption even trumped evidence that a child with mental retardation regressed in the somewhat more integrated environment. At the time of the relevant Sixth Circuit litigation, Neill Roncker was nine years old and severely mentally retarded. The school district recommended that Neill be placed in the segregated school. The parents objected and insisted that he be educated in the special education classroom within the regular public school. Everyone “agreed that Neill required special instruction; he could not be placed in educational classes with non-handicapped children.” For eighteen months, during the pendency of the litigation, Neill was educated in the program chosen by his parents—in a class for severely mentally retarded children at a regular elementary school. Apparently, Neill made no significant progress, and even regressed, in this classroom setting, and the school district thought he would make more progress in the segregated school because he could be educated with children of his same age and ability.

In the court’s words, even in a situation where the “segregated facility is considered superior, the court should determine whether the services which525 make that placement superior could be feasibly provided in a non-segregated setting.” Neill’s “progress, or lack thereof” was considered a “relevant factor” but “not dispositive” of the placement issue. If the school district could mimic the services offered by the segregated school at Neill’s regular public school, then that was the presumed superior outcome because of the mainstreaming available there. The fact that Neill apparently did not really have the ability to interact with other children was not even a factor in applying the mainstreaming presumption.

The integration presumption appears to have been irrebuttable in Roncker. As the court said, “Since Congress has chosen to impose that burden the courts must do their best to fulfill their duty.” Had the court required the competing options to be weighed against each other (without operation of a presumption), the outcome might have been different.

The issue in the Roncker case should have been whether the disability-only institution was a high quality institution or a warehouse which provided little educational benefit to children. A strong articulation of the integration presumption diverted attention from that central issue and did not necessarily enhance Neill’s education.

2. Overcoming the Integration Presumption

In another case involving a child with mental retardation, the Fifth Circuit in Daniel R.R. v. State Board of Education affirmed the school district’s decision to place a child with severe mental retardation in a more segregated setting. Unlike Roncker, however, the more segregated setting was not housed in a disability-only institution. This case involved the question whether the child should be placed in a regular classroom or a special education classroom. Because of the application of the integration presumption, the court did not, as an initial matter, weigh each educational alternative against the other. Instead, it evaluated the available educational programs only after determining that Daniel could not flourish at all in the regular classroom.

The court permitted the integration presumption to be rebutted, but only on the basis of very strong evidence. The school district took the position that it need not “mainstream a child who cannot enjoy an academic benefit in regular education.” The parents took the position that the school district should mainstream Daniel “to provide him with the company of nonhandicapped students.” The court identified several factors which could guide it in determining whether the integration presumption should be overcome in a particular case: (1) “whether the state has taken steps to accommodate the handicapped child in regular education,” (2) “whether the child will receive an educational benefit from regular education;” and (3) “what effect the handicapped child’s presence has on the regular classroom environment and, thus, on the education that the other students are receiving.”

The court found that the evidence was so stark that the school district could overcome the integration presumption. It concluded that Daniel received no educational benefit from the regular classroom even with supplemental assistance because the curriculum would have to be modified “beyond recognition” for Daniel to benefit. Arguably, the mainstream classroom even caused some526 harm to Daniel because he was so exhausted from the full day of programming that he sometimes fell asleep at school and might have developed a stutter from the stress. Applying the final factor, the court found that Daniel’s presence harmed the other students because of the disproportionate amount of time that the teacher had to devote to Daniel’s needs. The court found that the “instructor must devote all or most of her time to Daniel.”

An important feature of the school districts involved in the Roncker and Daniel R.R. litigation is that the districts appeared to have a full range of educational programs available. Inclusion in a regular classroom, special education programming within the regular public school, and disability-only institutions all appeared to be available. The question was which of these programs fit the needs of Neill and Daniel, not whether a full range of programming should exist.

These cases stand in contrast to those involving school districts that have not created a range of programming for children with disabilities, where the integration presumption has not served its structural purpose of encouraging the creation of a range of programming.

3. Disregarding the Integration Presumption

The strongest argument for implementing the integration presumption is that it hastens structural reform by making educational opportunities other than disability-only institutions available for children with disabilities. Nonetheless, some courts have failed to implement the integration presumption to achieve this structural end. Examples from the Fourth and Eighth Circuits demonstrate the continuing need for operation of the integration presumption as a means of increasing the available educational options for disabled children.

The facts in N.W. ex rel. A.W. v. Northwest R-1 School District, an Eighth Circuit case, are similar to those in Roncker. A.W. was an elementary-school-aged boy with Down Syndrome who the school district contended had severe mental retardation. The school district sought to place him in State School No. 2, while his parents wanted him to be educated in House Springs Elementary School.

Although the record is unclear in A.W., it appears as if the school district did not have a well developed special education program at House Springs. In order to educate A.W., the school district would have to offer him a new room designed for his specific needs. That, in turn, raised the specter of substantial costs.

The district court ruled for the school district, and the Eighth Circuit affirmed the district court opinion, finding that the district court could consider the cost to the school district of A.W.’s attendance at House Springs. Consideration of cost therefore trumped the integration presumption.

Similarly, the Fourth Circuit has been too eager to overcome the integration presumption without a demonstration that a school district has made available a range of educational programs for children with disabilities. Michael DeVries was a seventeen-year-old boy with autism and a measured IQ of seventy-two [and his mother wanted him to attend his neighborhood high school whereas the district wanted to place him at a private day school for children with disabilities].

This case did not involve a fact pattern where a rural public school system could not realistically place specialists at each of its schools and therefore sought527 to place children with disabilities at only some of its regular public schools. Instead, a public school system had apparently decided not to allocate resources for children with autism or cognitive impairments at its large public high school. This is exactly the type of problem that the integration presumption is supposed to solve. Had the court been more aware of the purpose behind the integration presumption, it might have used it more effectively to attain that structural reform.

In sum, the case law is unsatisfactory. The integration presumption should be returned to its original purpose by being a vehicle to encourage school districts to create more than disability-only options for children while not displacing sound educational choices at school districts that have available a full continuum of educational options for children with disabilities.

II. Disability-Based Empirical Literature

Although Congress has presumed that a fully integrated education is preferable for children with disabilities, education researchers have considered this issue to be an open question for many types of disabilities that affect a child’s ability to learn. These studies support the conclusion that a fully integrated education, with proper support in the mainstream classroom, is appropriate for some children with disabilities, but it makes little sense to presume this result in advance of an individualized evaluation.

A. Mental Retardation

[After surveying the social science literature, Professor Colker concludes that] [r]esearchers of children with mental retardation are not uniform in their generalizations. Possibly, children with mild mental retardation fare better in the regular classroom than children with severe mental retardation. Rather than presuming that a particular configuration of educational resources works for such children, however, it would make sense to weigh the evidence in a particular case and to consider whether the regular classroom teacher has the skills necessary to provide the child with an appropriate and adequate education.

B. Emotional or Behavioral Impairments

The education literature does not support a strong presumption that children with emotional or behavioral impairments should be fully included in the regular classroom. Conrad Carlberg and Kenneth Kavale reviewed fifty independent studies comparing special education with full inclusion and, in general, found no differences based on type of placement.

C. Learning Disabilities

Studies of children with learning disabilities suggest that they often fare poorly in the regular classroom. One reason that these early studies reported such poor results for students in regular classrooms is that these students may528 not have been receiving adequate support in the regular classrooms. By contrast, they were receiving special services if they were in self-contained special education classes or pull-out programs. [Another researcher] concluded “that general education settings produce achievement outcomes for students with learning disabilities that are neither desirable nor acceptable.”

One justification for a full-inclusion model is that it is considered less stigmatizing to children to be educated in the regular education setting. Jenkins and Heinen, however, found that older students tended to prefer a pull-out program because they considered it to be less embarrassing than an inclusion program. Similarly, Padeliadu and Zigmond reported that children found a special education placement to be a more supportive, enjoyable, and quiet learning environment than their general education classroom. Examining the preferences of children with disabilities, Marty Abramson also concluded that “many children in special classes prefer to remain in special education programs” because social acceptance did not accompany integration.

The problem is not simply that these children are not accepted by their classmates; they are often not accepted by their classroom teacher. As Abramson notes, “[a] number of studies have indicated that regular classroom teachers perceive handicapped children to be socially and academically inferior to regular children. However, it is these very teachers who will be required to accept handicapped children into their classrooms.”

Conclusion

The integration presumption should serve its historical purpose of preventing school districts from only offering segregated, disability-only education, but the integration presumption should not be understood to dictate that a fully inclusive education is necessarily the best educational option when a school district offers a continuum of educational alternatives. The continuum of services regulation should play a bigger role in the IEP process, with a school district failing to meet its procedural requirements if it does not offer a continuum of services within the public school building.

Under the “continuum of services” regulation, the IDEA already requires that

(a) Each public agency…ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.

(b) The continuum required in paragraph (a) of this section must—

(1) Include the alternative placements listed in the definition of special education under §300.26 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and

(2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

If a school district satisfies the continuum of services test, then it should be expected to follow a checklist prepared by the U.S. Department of Education to determine whether it has chosen the appropriate placement for an individual child.

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School districts that could not demonstrate that they had available a full range of programs would be deemed presumptively in violation of the IDEA if parents were not satisfied with the single educational option made available to their child, especially if that single option were a separate educational facility. If the school district did have available a continuum of services then courts would presume that it was acting in good faith so long as that district considered the checklist factors in determining the child’s placement.

Mark C. Weber, A Nuanced Approach to the Disability Integration Presumption

156 U. Pa. L. Rev. PENNumbra 174 (2007)

Professor Colker would not apply [the] integration presumption, or would apply it only in the weakest possible form, when the school district complies with its additional obligation under the federal regulations to offer a continuum of services and when the district provides for supplementary services, such as resource room or itinerant teachers, to be delivered in regular class placements.

In this Response, I contend that Professor Colker’s revision is unsupported and would be unwise. But that is not to say that a new way of looking at the integration presumption is wholly out of order. The integration presumption should not be applied in a simple-minded way to say that general education is always best under all circumstances. Instead, the presumption should operate as a presumption ought to: in the absence of other evidence, it should be the rule. If the school is arguing for integration, the presumption ought to carry some, though not very great, weight. If the parent is arguing for integration, the presumption should be much stronger. More importantly, the second half of the language of the statutory provision embodying the presumption should be taken seriously. Separate classes should be used only when supplemental services cannot make general education work for a given child. The emphasis should be on the services, and the services should be broadly defined to include such things as co-teaching by special education professionals, aide services, assistive technology, behavior intervention, and initiatives to prevent harassment and mistreatment by teachers and peers. The services should be intense and individualized. When they are delivered separately, they should be temporary or provided outside of the regular school day.

Professor Colker’s survey of the relevant case law stops abruptly at the end of the 1980s, and contains only passing references to more recent cases. This omission prevents her from identifying the principal controversy over integration in the 1990s and 2000s. The current controversy is not over whether application of the integration presumption should be broad. The current controversy is over the services to be provided in the regular classroom to make integration work.

The real issue in the debate over the application of the disability integration presumption is the presence or absence of related services for the child in the integrated setting. The educational literature identifies related services as the530 means to success in a mainstreamed placement. The related-services issue emerges in current decisions from the courts, and it is the key to resolving the current controversies in the schools.

The case law has come to reflect the true problem with regard to applying the disability presumption. Two critical cases from the 1990s are Sacramento City Unified School District, Board of Education v. Rachel H. and Oberti v. Board of Education. In Rachel H., the Ninth Circuit required the placement of a child with mental retardation in a full-time regular education program with the help of a part-time aide and other assistance. The school wanted to mainstream her for art, music, lunch, and recess, but not for academic subjects. The court placed weight on the testimony of the parents’ experts and the child’s teacher in her mainstreamed setting, and relied especially on the child’s progress in social and communication skills when in that environment. The court adopted a test that focused on, among other considerations, the “educational benefits available to Rachel in a regular classroom, supplemented with appropriate aids and services, as compared with the educational benefits of a special education classroom.” In Oberti, the Third Circuit required a school district to place a child with Down Syndrome in a mainstreamed class. The court acknowledged that a mainstreamed class had previously been unsuccessful for the child, but stressed that no supplemental aids and services had been provided. The evidence showed that the child could succeed if provided services, such as the assistance of an itinerant special education instructor, special education training for the regular education teacher, modification of the curriculum, parallel instruction, and part-time use of a resource room.

The court in Oberti put the emphasis where it belongs, on the services to be provided: “One of our principal tasks in this case is to provide standards for determining when a school’s decision to…place [a] child in a segregated environment violates IDEA’s presumption in favor of mainstreaming. This issue is particularly difficult in light of the apparent tension within the Act between the strong preference for mainstreaming and the requirement that schools provide individualized programs tailored to the specific needs of each disabled child. The key to resolving this tension appears to lie in the school’s proper use of ‘supplementary aids and services.’ ”

As Professor Colker’s personal reflections suggest, many parents resist efforts to integrate their children. Many school districts resist integration as well. I submit that the parental resistance is rarely due to sophisticated evaluation of the educational research. Parents’ concerns about adequacy of education are usually based on information or beliefs about the specific integrated options being offered to their child. In many instances, the children are already in integrated public school programs, and whatever is happening is not good. Adequate support services may not be offered. Services promised may not be delivered. The general education teachers may not be cooperating. Class sizes may be too large. Physical or verbal harassment may be occurring. A disability-only school, particularly a private school, looks extremely attractive.

When parents resist for these reasons, one is hard-pressed to say they are wrong. Perhaps they should fight for integration that works, but their children531 are growing up rapidly, and the adaptive preference of a separate program makes sense for them. Law often imposes presumptions based on an unscientific calculation of which position is more frequently justified. When parents resist integration, the presumption in favor of the integrated option proposed by the public schools should not be a strong one. It should be dispelled by evidence that the school’s specific proposal, as likely to be implemented, will not be successful for a given child.

When the school authorities resist parental efforts to obtain more integrated settings for their children, it may be because they think that effective services cannot be provided in the mainstream. It may be, however, that the services could be given there but would be costly, and the state’s allocation of special education funding favors services in separate settings. It may also be that general education personnel resist having the child in an integrated class. For many educators, special education remains a place to send the child, rather than a bundle of services to help the child. When the public school resists integration and the parents push for it, the balance of probabilities tips in favor of the parents’ position. There is enough risk that the district is motivated by cost, internal politics, or standard operating procedure to call for a strong presumption in favor of the integrated option.

Conclusion: A Nuanced Approach

The integration presumption should stay, but it should be applied in a nuanced fashion. The integration need not always be total, or at least temporarily not total. The focus should be on the intensity of services provided to facilitate success in the mainstream. When parents resist integrated settings for their children, it is crucial to scrutinize the quality of the services offered and assess whether they truly will enable the child to succeed in general education. When schools resist providing the integrated setting, it is crucial to look hard at the school’s motivations.

A nuanced approach to applying the integration presumption fits well with meaningful reform of special education law. Children with disabilities, except for the small minority with verifiably severe cognitive impairments, should be achieving at grade level with their peers, and even those with severe cognitive impairments should be on a parallel track. The way to attain equal achievement is not to separate the students with disabilities, and certainly not to send them away for long periods of time to segregated classes where expectations inevitably decline. The way to equality is to provide extra services, technology, and accommodations in regular classes so that the children with disabilities do not fall behind. Any removal should be temporary and specifically targeted to help the children thrive in general education settings. Whatever one thinks of the testing regime established by the No Child Left Behind initiative, it is essential to have the special education subgroup attain the same level of educational success as the general population, and that ought to be the job of the school system as a whole. Special education should mean support, not exile.

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NOTES AND QUESTIONS

1. Disagreement? What, exactly, do Professors Colker and Weber disagree about? Professor Colker seeks to remove the integration presumption in favor of an individualized review for each student because many students would benefit from a segregated setting. The real issue, as she sees it, is whether a school is offering a full continuum of alternative placements. What incentive would a school have to offer a full range of placements if the integration presumption were removed? How does Professor Colker’s new test solve this problem, and what factors should be in her proposed checklist? Professor Weber does not think the problem lies with the integration presumption, but rather with the failure to provide proper services to ensure that students with disabilities can thrive in the mainstreamed classroom. The integration presumption, he argues, ensures that schools essentially try their hardest to mainstream students with disabilities. How do you think Professor Colker would respond? More recent, and thorough, scientific studies find that when students with disabilities spent more time in traditional education classrooms they were more likely to score higher on standardized tests in reading and math, have fewer absences from schools, experience fewer referrals for disruptive behavior, achieve more positive post-school outcomes, and have a broad and supportive social network. Cheryl M. Jorgensen, Inclusion: The Right Thing for All Students, Schoolbook (Nov. 11, 2011). Do these new findings negate Professor Colker’s argument that an integration presumption should be jettisoned in favor of a more individualized review?

2. LRE and race. As discussed near the beginning of this chapter, African Americans are disproportionately placed into special education compared to their peers. If the integration presumption were removed, as urged by Professor Colker, would that increase racial segregation within schools? Professor Colker responded to this concern as follows: “An integration presumption under the IDEA may operate as a tool to protect African Americans from unnecessary segregation on the basis of disability. But is an integration presumption the best way to respond to this problem? Or are other steps more effective, such as revising testing methods for identification of children with disabilities, so that there is less dependence on standardized tests?” Id. at 854. Do you agree that other steps are more effective at preventing the segregation of African Americans into classes for the disabled?

3. LRE and cost. The entitlement to related services and an education in the LRE are not independent of one another. As pointed out by Professor Weber, a child may need more extensive related services to be successful in a mainstreamed environment than he or she would need in a special education classroom. Is there any limit to the cost a district must undertake to ensure students with disabilities are mainstreamed? Under both the Daniel R.R. and Roncker tests discussed in Professor Colker’s article, the cost of mainstreaming is one of the factors to be considered by the court. Are cost considerations supported by the statutory language regarding LRE or related services? Should cost even be a factor in the LRE analysis?

Observers often decry the high cost of providing related services to ensure students with disabilities are educated in the general education classroom. Mark533 T. Keaney, Comment, Examining Teacher Attitudes Toward Integration: Important Considerations for Legislatures, Courts and Schools, 56 St. Louis U. L.J. 827 (2012). One example is paraprofessionals, or one-to-one aides, who are a popular related service that enable students to remain in general education classes. But their use may increase costs without necessarily boosting student achievement. Nathan Levenson, Boosting the Equality and Efficiency of Special Education 9, 32 (Thomas B. Fordham Inst. 2012). If students with disabilities have better educational outcomes at lower cost in separate special education classes or schools, should the LRE requirement be abandoned or modified?

4. The effect on nondisabled students. The Daniel R.R. decision discussed in Professor Colker’s article considered as one element in overcoming the integration presumption “what effect the handicapped child’s presence has on the regular classroom environment and, thus, on the education that the other students are receiving.” Considering that the IDEA is about serving students with disabilities, should the effect of mainstreaming on general education students be relevant to the LRE inquiry? What about the effect on the teacher and his or her ability to teach the general education students? Might the integration presumption be justified on the grounds that nondisabled students will become more sympathetic toward, attuned to, and comfortable with disabled people if they attend class together? In other words, there may be positive effects of mainstreaming for nondisabled students as well as students with disabilities. Or does mainstreaming simply lead to more bullying of students with disabilities?

5. Private school placement by the school district. In addition to specifying that placement must be in the LRE, the IDEA allows public school districts to place students with disabilities in private facilities if they are unable to provide the student a FAPE in the public schools. 20 U.S.C. §1412(a)(10)(B) (2006). When the school district decides to place a student in a private school as a means of providing FAPE, the district must pay the costs directly or reimburse the parents for the costs. While these costs can be substantial, courts generally hold that where the educational needs necessitate private placement, including placement at a residential facility, a district must cover all costs of the placement. For example, in Abramson v. Hershman, 701 F.2d 223 (1st Cir. 1983), the First Circuit ordered the school district to pay residential costs because 24-hour care, training, and reinforcement were necessary for the child to make any educational progress. See also Taylor ex rel. Taylor v. Honig, 910 F.2d 627 (9th Cir. 1990). The IDEA expressly allows school districts to refer students with disabilities to parochial schools to fulfill their FAPE obligations. 20 U.S.C. §1412(a)(10)(A)(i)(II); see also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (holding that the provision of IDEA services, such as a sign language interpreter, in religious schools does not violate the Establishment Clause).

PROBLEM

Rachel is mentally retarded. In kindergarten and first grade, Rachel was in the regular classroom full time. She required a part-time aide and a modified curriculum to attend the regular classroom. During these years, she made no534 academic progress, made some progress with socialization, was mildly disruptive to her classmates, and required a significant amount of attention from her teacher, even with the aide present. At the IEP meeting at the end of the first-grade year, Rachel’s parents demanded that she continue her placement in the regular classroom. The school district refused and offered to place Rachel in a special education classroom for academic subjects and in the regular classroom for nonacademic subjects. It believed that Rachel would receive no benefit from the classroom because she was years behind the higher academic standards in the second grade. It also argued that providing the related services to enable Rachel to participate in the regular classroom would cost $110,000 (to pay for the full-time aide and training of the entire school staff), which is significantly more than the cost of educating her in a special education classroom with trained special education teachers. Must the school place Rachel in the more mainstreamed setting to comply with the LRE obligation? Would your opinion change if it were the parents seeking the more restrictive setting rather than the school?

6. Discipline

Short of suspension and expulsion, there are few legal restrictions on disciplining students with disabilities. Courts have approved a range of discipline procedures for students with disabilities ranging from time-out, detention, and restriction on privileges. But when the misbehavior of a special education student becomes severe enough that expulsion or suspension is warranted, the IDEA imposes significant additional legal protections for eligible students. One of these restrictions—the “stay-put” provision protecting eligible students from a unilateral change in placement—provides that “during the pendency of any proceeding…the child shall remain in the then-current educational placement of the child.…” 20 U.S.C. §1415(j) (2006). In the next case, the Supreme Court held that this provision prohibits special education students from being suspended for more than ten days without a court order, even if they are dangerous, unless the parents consent.

Honig v. Doe

484 U.S. 305 (1988)

Justice Brennan delivered the opinion of the Court.

Today we must decide whether, in the face of [the stay-put] statutory proscription [in the IDEA], state or local school authorities may nevertheless unilaterally exclude disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities.

[The Act includes numerous procedural protections to students with disabilities and their parents, including] an opportunity to present complaints concerning any aspect of the local agency’s provision of a free appropriate public education; and an opportunity for “an impartial due process hearing” with respect to any such complaints.

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At the conclusion of any such hearing, both the parents and the local educational agency may seek further administrative review and, where that proves unsatisfactory, may file a civil action in any state or federal court. In addition to reviewing the administrative record, courts are empowered to take additional evidence at the request of either party and to “grant such relief as [they] determine[] is appropriate.” The “stay-put” provision at issue in this case governs the placement of a child while these often lengthy review procedures run their course. The present dispute grows out of the efforts of certain officials of the San Francisco Unified School District (SFUSD) to expel two emotionally disturbed children from school indefinitely for violent and disruptive conduct related to their disabilities. [John Doe had difficulty controlling his impulses and anger. A goal in his IEP was “[i]mprovement in [his] ability to relate to [his] peers [and to] cope with frustrating situations without resorting to aggressive acts.” On November 6, 1980, Doe choked a student who was taunting him and kicked out a school window while being escorted to the principal’s office afterward. He was initially suspended for five days. On the day his suspension was to end, the Student Placement Committee (SPC) recommended that Doe be expelled and extended the suspension until November 25 when the expulsion hearing could be held. Doe’s mother brought suit, alleging that these actions violated the Act. The District Court agreed and returned Doe to his then current educational placement at his school pending completion of a new IEP. Doe reentered school on December 15, five-and-one-half weeks, and 24 school days after his initial suspension.

Jack Smith was also identified as emotionally disturbed and was unable “to control verbal or physical outburst[s]” and exhibited a “[s]evere disturbance in relationships with peers and adults.” Smith had a consistent pattern of misbehavior and the school warned him that if he continued his disruptive behavior—which included stealing, extorting money from fellow students, and making sexual comments to female classmates—they would seek to expel him. He was suspended for five days on November 14, after he made lewd comments. As with Doe’s case, the SPC extended the suspension indefinitely pending a final disposition in the matter. The school began home instruction for Smith on December 10 and on January 6, 1981, an IEP team convened to discuss alternative placements. Smith intervened in Doe’s lawsuit and the District Court entered summary judgment in their favor.]

On appeal, the Court of Appeals for the Ninth Circuit affirmed the orders with slight modifications. Agreeing with the District Court that an indefinite suspension in aid of expulsion constitutes a prohibited “change in placement” the Court of Appeals held that the stay-put provision admitted of no “dangerousness” exception and that the statute therefore rendered invalid those provisions of the California Education Code permitting the indefinite suspension or expulsion of disabled children for misconduct arising out of their disabilities.

The language of [the stay-put provision] is unequivocal. It states plainly that during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, “the child shall remain in the then current educational placement” (emphasis added). Faced with this clear directive, petitioner asks us to read a “dangerousness” exception into the stay-put provision.

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Petitioner’s arguments proceed, he suggests, from a simple, commonsense proposition: Congress could not have intended the stay-put provision to be read literally, for such a construction leads to the clearly unintended, and untenable, result that school districts must return violent or dangerous students to school while the often lengthy due process proceedings run their course. We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts.

Congress passed the [Act] after finding that school systems across the country had excluded one out of every eight disabled children from classes. In drafting the law, Congress was largely guided by the recent decisions in Mills and PARC, both of which involved the exclusion of hard-to-handle disabled students.

Congress attacked such exclusionary practices in a variety of ways. It required participating States to educate all disabled children, regardless of the severity of their disabilities, and included within the definition of “handicapped” those children with serious emotional disturbances. It further provided for meaningful parental participation in all aspects of a child’s educational placement, and barred schools, through the stay-put provision, from changing that placement over the parent’s objection until all review proceedings were completed. Recognizing that those proceedings might prove long and tedious, the Act’s drafters did not intend [the stay-put obligation] to operate inflexibly, and they therefore allowed for interim placements where parents and school officials are able to agree on one. Conspicuously absent from [the stay-put provision], however, is any emergency exception for dangerous students.

Our conclusion that [the stay-put provision] means what it says does not leave educators hamstrung. The Department of Education has observed that, “[w]hile the [child’s] placement may not be changed [during any complaint proceeding], this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others.” Such procedures may include the use of study carrels, timeouts, detention, or the restriction of privileges. More drastically, where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 schooldays. This authority, which respondent in no way disputes, not only ensures that school administrators can protect the safety of others by promptly removing the most dangerous of students, it also provides a “cooling down” period during which officials can initiate IEP review and seek to persuade the child’s parents to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts.

In the present case, we are satisfied that the District Court, in enjoining the state and local defendants from indefinitely suspending respondent or otherwise537 unilaterally altering his then current placement, properly balanced respondent’s interest in receiving a free appropriate public education in accordance with the procedures and requirements of the EHA against the interests of the state and local school officials in maintaining a safe learning environment for all their students.

Affirmed.

NOTES AND QUESTIONS

1. Congressional intent. The Honig Court concluded that Congress intended to strip schools of their unilateral authority to exclude even dangerous students with disabilities from school. How did the Court know this was intended by Congress? Did Congress really mean to empower parents to prevent long-term suspensions until all the proceedings were completed?

2. The need for codification. The Honig Court failed to resolve all the legal issues surrounding disciplining students with disabilities, which spawned extensive litigation. Congress finally intervened in 1997 by adding specific procedures to the IDEA for suspension and expulsion and added to those procedures in the 2004 reauthorization. Disciplinary procedures under the IDEA may be the most significant and the most confusing provisions for many educators. The statute now allows districts unilaterally to suspend students with disabilities for up to ten days without providing notice and a hearing. 20 U.S.C. §1415(k) (2006). The statute also codifies the holding of Honig that a unilateral removal of a student with a disability from his or her then current placement for more than ten consecutive days is an impermissible change in placement, id. §§1415(j)-(k).

3. Drugs, weapons, and violence. The IDEA now provides wide latitude to administrators to remove special education students who possess a weapon; possess, use, or sell illegal drugs; or inflict serious bodily injury on another student while on school premises. In these limited cases the student may unilaterally be placed in an interim alternative educational placement for up to 45 days without a hearing. 20 U.S.C. §1415(k)(1); 34 C.F.R. §300.520. If a student with a disability presents a serious risk of injury to self or others, administrators may ask a hearing officer for an interim alternative educational placement for up to 45 days. Students removed under this provision are entitled to continue to receive services and a functional behavior assessment and behavior intervention plan while in the interim alternative placement. Once the 45-day period expires, the district must return the child to his or her prior placement unless it is dangerous to do so. 34 C.F.R. §300.526.

4. Children who are not yet IDEA eligible. Students who have a disability but have not yet been identified by the district and evaluated are also protected under the IDEA. If the district knew that the child may be a child with a disability before the conduct that led to the disciplinary action, the student may claim the protections of the Act. A district has knowledge of a disability if the parent or school personnel had previously expressed concern about eligibility or asked for538 an evaluation. 34 C.F.R. §300.534. The behavior or performance of the child, standing alone, is insufficient to establish knowledge on the part of the school. Do these protections create incentives to parents to claim their child is disabled to gain the protections afforded these students under the IDEA?

5. Challenges. School officials may obtain parental consent for any change in placement of a student with a disability. If parental consent is obtained, the IDEA limitations on disciplinary actions are generally not triggered. If consent is not obtained, the protections apply and decisions about removal of a child or the outcomes of manifestation reviews may be challenged in a due process hearing, which can be held on an expedited basis. 34 C.F.R. §300.532. Unlike Honig’s central holding, the IDEA requires only that the child remain in the interim alternative educational setting pending the outcome of the appeal. 34 C.F.R. §300.533.

Manifestation Reviews

In an early case, S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981), the Fifth Circuit held that children should not be suspended or expelled for conduct caused by or related to their disabilities. For example, a student with Tourette’s syndrome who cannot control his use of vulgar language should not be punished for violating school rules prohibiting obscene language. Timothy B. ex rel. J.B. v. Neshaminy Sch. Dist., 153 F. Supp. 2d 621 (E.D. Pa. 2001). The IDEA codified and extended the S-1 holding by creating procedures to determine whether misconduct was the “manifestation” of the child’s disability. If a district decides to change a disabled student’s placement—suspend or expel for more than 10 days—the IEP team must meet to determine whether the misconduct was a manifestation of the child’s disability. If it is, the student generally cannot be punished and the district must take immediate steps to remedy the manifested behavior by conducting a functional behavioral assessment and implementing a behavior intervention plan. 20 U.S.C. §1415(k)(1); 34 C.F.R. §300.530. If the misconduct is not a manifestation of the disability, the student can be disciplined in the same manner as any student who is not disabled for up to ten days. If the suspension is for more than ten days, the district must continue to provide services that will allow the student progress in the general curriculum and toward achieving his or her IEP goals. 20 U.S.C. §1412(a)(1)(A); 34 C.F.R. §300.530(d).

In the next case, the court holds that participating in vandalism is a manifestation of ADD.

Richland School District v. Linda P. ex rel. Thomas P.

2000 U.S. Dist. LEXIS 15162 (W.D. Wis. May 24, 2000)

On the evening of November 12, 1999, a group of vandals including defendant Thomas Peterson were involved in a vandalism spree that destroyed $40,000 worth of property at two elementary schools located within the539 Richland School District. After learning that Peterson, a senior at Richland High School, had been involved, the school district sought to expel him. However, because Peterson was receiving special education for a learning disability, the district was required to follow certain procedures set forth in the Individuals with Disabilities Education Act. Specifically, before it could expel Peterson the school district had to determine that his misconduct was not a manifestation of his disability.

The district easily found that Peterson’s participation in the vandalism had nothing to do with his learning disability, and the school board voted to expel him. However, suspecting that there was something else going on with her son, Peterson’s mother appealed the district’s manifestation determination and had Peterson evaluated by a clinical psychologist. The psychologist diagnosed Peterson with attention deficit disorder and dysthymia, and opined that these conditions led to his involvement in the vandalism incident. The administrative law judge who presided over the due process hearing not only considered this new evidence but found it persuasive enough to require him to set aside the expulsion.

Plaintiff Richland School District now seeks reversal of the ALJ’s decision.

B. Scope of Review of Manifestation Determination

The district contends that the ALJ’s conclusion [that new evidence, not reviewed by the IEP team in the manifestation review could be reviewed at the due process hearing] was incorrect as a matter of law. First, the district refers to the language of §1415(k)(4)(C) which states that the IEP Team “may determine that the behavior of the child was not a manifestation of such child’s disability.…” The district argues that the phrase “such child’s disability” means only “the disability identified by the school district which makes the student eligible for special education in the first place”—in Peterson’s case, a learning disability. Thus, argues the district, the ALJ erred in considering evidence of Peterson’s ADD/dysthymia diagnosis.

The district cites no authority to support its insistence that the court should engraft the phrase “identified by the school district” after the term “child’s disability” in §1415(k)(4)(C). Such support is lacking in the statute’s plain language. 20 U.S.C. §1415(k)(4)(C) states that “if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability…”, the IEP Team must determine that the child’s behavior was “not a manifestation of such child’s disability” before the school may take the proposed disciplinary action. Under its express terms, the statute does not limit the IEP Team to considering only the disability “identified by the school district.”

Nor may such support be found in the fact that §1415(k) contains a separate subsection concerning students with as-yet-unidentified special education needs. See 20 U.S.C. §1415(k)(8)(A). Although the district argues that subsection (k)(8) is the operative provision in this case because Peterson alleges that his misconduct was related to a disability for which he was not yet receiving540 services, the statute applies only to “[a] child who has not been determined to be eligible for special education and related services under this subchapter.…” 20 U.S.C. §1415(k)(8)(A). At the time of the vandalism incident, Peterson was determined to be eligible for such education and related services, albeit for a different disability than the one he asserts led to his misconduct. Under the statute’s plain language, however, it appears that §1415(k)(4)(C) applies to students alleging both a disability for which services are already being provided and a “new” disability for which they are not.

Notwithstanding the statutory language, the district urges that the ALJ’s review of the manifestation determination should have taken into account only what was known of the child’s disability by the IEP Team at the time of the manifestation determination—a “snapshot,” so to speak—in accordance with the approach that several courts have employed in the context of reviewing the appropriateness of an IEP determination. In contrast [to creation of an IEP], a manifestation determination is by its very nature retrospective, for it looks back at the child’s behavior and attempts to determine if the child’s disability impaired his ability to understand and control his behavior.

For all these reasons, I find that the ALJ did not commit an error of law in concluding that he could consider evidence concerning Peterson’s diagnosis of ADD and dysthymia even though that evidence was not before the IEP Team during its manifestation determination.

E. Whether Peterson’s Behavior Was a Manifestation of His ADD and Mood Disorder

Finally, the district contends that, even if Peterson does have ADD and dysthymia, the evidence does not support the ALJ’s finding that these disorders gave rise to his involvement in the vandalism. The district contends that, according to the statement he gave to the police, Peterson stayed in the vehicle and did not enter the schools even though he knew that his friends were going to commit acts of vandalism and even though he heard glass breaking. According to the district, these acts demonstrate that Peterson was able to “exercise restraint” and are inconsistent with his alleged impulsivity and attraction to risk-taking behavior.

I agree that it seems to run counter to common sense to characterize a conscious decision to remain in the vehicle while one’s friends commit vandalism as an impulsive, thrill-seeking act. However, Dr. Eisemann believed otherwise, noting that “impulsivity” as she used the word was not limited to spur-of-the-moment decisions but could span activities over the course of an entire evening. Dr. Eisemann stated that on the night in question, Peterson was “doing things that were exciting” and “wasn’t thinking about the consequences.” She testified that once a child with ADD begins such risk taking behavior, it is very gratifying because of “the way they process the information in the brain.” Dr. Eisemann also testified that a related manifestation of ADD and dysthymia is that children who suffer with such disorders are easily swayed into making bad decisions.

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Conclusion

This opinion should not be read to suggest that a student who commits reprehensible acts may avoid disciplinary action by running to a psychologist and obtaining a post-hoc diagnosis of attention deficit disorder. Despite what seems to be a trend towards equating bad behavior with ADD or ADHD, they are not one in the same. Peterson presented credible evidence to show that he is among the small percentage of the population that suffers from this disorder.

NOTES AND QUESTIONS

1. A different approach. In Farrin v. Maine School Administrative District No. 59, 165 F. Supp. 2d 37 (D. Me. 2001), Jacob had learning disabilities coupled with a tendency to act impulsively and some slight behavioral concerns. After being suspended for selling narcotics at school Jacob contested the suspension on the grounds that the infraction was a manifestation of his disability. The court disagreed and held:

Plaintiffs have failed to demonstrate by a preponderance of the evidence that an “impulsivity” problem such as the one they describe would manifest itself in a decision to sell marijuana. Plaintiffs apparently assume that drug selling and “impulsivity” are related. However, they have failed to support their assumption with any concrete evidence beyond suggesting that the decision to sell drugs is such a poor one that only a behavioral disability could prompt Jacob to make it.

Defendant, on the other hand, has presented strong evidence that the tendency to make impulsive decisions and the resolve to peddle narcotics at school are not at all synonymous. In particular, Defendant showed that Jacob understood school rules and that his actions involving the marijuana took place over several hours, involving not a single decision, but many individual ones. These facts are completely antithetical to Plaintiffs’ impulsivity theory. See, e.g., Doe, 115 F.3d at 1281-82 (finding that evidence that child understood school rules and made calculated decision to bring marijuana to school defeated argument that child acted impulsively). Therefore, the preponderance of the evidence supports the conclusion that even if the school had treated Jacob as having a behavioral disorder characterized by impulsive decision-making, the [IEP team] would not have decided differently. Therefore, the hearing officer’s finding affirming the manifestation review was correct.

Id. at 52. Can Farrin and Richland be reconciled? Might these decisions always hinge on a battle of experts regarding manifestation?

2. What does “manifestation” mean? Courts are inconsistent in their interpretation of what is meant by “manifestation.” The Ninth Circuit requires a showing that the disability significantly impairs the student’s behavioral controls and not merely that the conduct bears only an attenuated relationship to the disability. Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986) (noting that a disabled student’s loss of self-esteem and resulting misconduct to gain attention is too attenuated to be a manifestation of the disability). The Fourth Circuit, on the other hand, allows the relationship between the disability and misconduct to be more indirect or attenuated. Sch. Bd. v. Malone, 762 F.2d 1210 (4th Cir. 1985)542 (student’s learning disabilities caused a poor self-image, which caused him to seek peer approval by acting as the go-between in drug transactions).

In Fitzgerald v. Fairfax County School Board, 556 F. Supp. 2d 543 (E.D. Va. 2008), a student with an emotional disability, Tourette’s syndrome, attention deficit hyperactivity disorder, generalized anxiety disorder, and obsessive compulsive disorder was expelled for shooting paintballs with his friends at his school and vehicles around the school. The court held:

Even assuming Kevin’s disability did cause him to be drawn into inappropriate behaviors at times, the record makes pellucidly clear that far from being drawn into the paintball shooting incident, Kevin played a predominant role in planning and executing it. Specifically, the record reflects that Kevin (i) suggested the idea of shooting the school with paintball guns; (ii) offered to drive the boys there; (iii) used a paintball gun stashed in his own car; and (iv) drove to the school not once, but three times, as he had to drive the boys to get supplies to fix a broken paintball gun and later had to take two boys home who no longer wanted to participate. The entire incident lasted over several hours. Nothing in these facts supports plaintiffs’ conclusion that Kevin was impulsively drawn into the paintball incident by his friends as a result of his disability. Kevin simply made a bad decision; he must now live with the consequences.

Are the results in Fitzgerald, Richland, and Farrin easily reconciled?

3. Impulsivity and inability to control conduct. While courts disagree over the directness of the tie between the disability and the misconduct, there is no dispute that certain disabilities often lead to impulsivity and conduct that students cannot control. See, e.g., Griffin v. Crossett Sch. Dist., Inc., No. 07-CV-1015, 2008 WL 2669115, at *1 (W.D. Ark. 2008) (holding that violating the school district’s weapon policy was a manifestation of the child’s ADHD because it impaired his ability to understand the impact and consequences of his behavior); Clark v. Bd. of Educ. of Franklin Tp. Public Schools, No. 06-2736, 2009 WL 1586940, at *1 (D.N.J. 2009) (holding that child’s impulsive behavior which resulted in aggressive acts was a manifestation of his learning and development disabilities); Williamson County Bd. of Educ. v. C.K., No. 3:07-0826, 2009 WL 499386, at *1 (M.D. Tenn. 2009) (holding that child’s fighting conduct was impulsive behavior caused by his ADHD).

It is easy to accept that a student with Tourette’s syndrome cannot control his or her outbursts and should not be subject to discipline for those outbursts. The same is true of many behavioral and emotional disabilities, such as anxiety, bipolar, obsessive compulsive, and psychotic disorders, as well as attention deficit/hyperactivity disorder, of which impulsivity (acting before thinking) is a key characteristic. These medical conditions disrupt a child’s thinking, feeling, mood, and ability to relate to others on a daily basis. Robert M. Freidman et al., Prevalence of Serious Emotional Disturbance in Children and Adolescents, in Mental Health, United States, 1996, at 72 (Ronald M. Manderscheid et al. eds., 1996) (“the definition [of children with serious emotional disturbance] indicates that ‘functional impairment’ is defined as difficulties that substantially interfere with or limit a child or adolescent from achieving or maintaining one or more developmentally-appropriate social, behavioral, cognitive, communicative, or adaptive skills.”); National Dissemination Center for Children with Disabilities, Emotional Disturbance (2010) (“Just as diabetes is a disorder of the pancreas,543 mental illnesses are medical conditions that often result in a diminished capacity for coping with the ordinary demands of life.”). Some behaviors and characteristics observed in children with emotional disturbance include hyperactivity, aggression or self-injurious behavior, distorted thinking, and abnormal mood swings making them privy to irrational and often violent behavior. One example of an emotional disturbance is conduct disorder, which is characterized by aggression to people and animals, destruction of property, deceitfulness (lying and stealing), or truancy or other serious violations of the rules. Id. As emphasized by the National Alliance on Mental Illness, conditions such as emotional disturbance cannot be overcome by willpower and are not related to a person’s character or intelligence. What Is Mental Illness: Mental Illness Facts, National Alliance on Mental Illness, available at http://www.nami.org/Content/NavigationMenu/Inform_Yourself/About_Mental_Illness/About_Mental_Illness.htm (last visited Mar. 3, 2013).

4. Establishing disability after the fact. Both the Farrin and Richland courts permitted IDEA-eligible students to assert that their conduct was a manifestation of a disability that was not previously identified. Even students who have not been identified as IDEA eligible are entitled, after they are subject to discipline, to receive the protections of the IDEA if the school “had knowledge…that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.” 20 U.S.C. §1415(k)(5). A school has “knowledge” only if, before the offending conduct occurred, a parent has expressed concern in writing about the need for special education, an evaluation has been requested, or someone at the school has expressed specific concerns about a pattern of behavior by the child. Since, on the one hand, the IDEA indicates it is offensive to punish students with disabilities for conduct they cannot control, is it consistent to limit manifestation determinations to such a circumscribed class of students who have not yet been deemed IDEA eligible? The Richland court said manifestation reviews should be retrospective—should any student who gets in trouble and might have a disability be entitled to a retrospective manifestation review? Keep in mind that breaking school rules is often the first indication that a child has a disability. Should IDEA-eligible students, as in Richland and Farrin, be exempted from the “knowledge” requirement applicable to students who are not eligible?

5. Zero tolerance. The obligation to perform manifestation reviews trumps the “zero-tolerance” policies that have become so popular across the country. 20 U.S.C. §1415(k)(1)(A). Do these procedural protections create an unfair double standard between disabled and nondisabled students? If so, should the discipline rules for the nondisabled students be changed, or should the IDEA change?

PROBLEM

Tom is a tenth-grade student with a high IQ but struggles with reading and writing assignments. He often takes out his frustration by acting out in class, sometimes in a violent fashion. He has never injured a student or teacher, but there is a likelihood it could happen. Tom’s mom has met with his teachers often544 to discuss why Tom struggles with reading and writing despite his high intelligence, but she has never formally asked for a special education evaluation. His teachers have discussed Tom’s behavior with the principal and school counselors. One day, after Tom struggled with an English test, he grabbed a plastic knife from the lunch room and boasted to his lunch mates that he would cut up his English teacher. Tom was immediately sent to the principal’s office. The principal wants to suspend Tom for 15 days, without a hearing, for violating the school discipline code. How would you advise the principal?

7. Procedural Due Process, Dispute Resolution, and Remedies

The IDEA grants significant procedural due process protections to ensure the rights of students with disabilities are protected. Notice and hearing rights are granted throughout the special education process, from initial evaluation through the completion of the special education program. These procedural protections are designed to keep parents and students notified of their rights so that they can act as the primary watchdogs to ensure districts are fulfilling their obligations.

a. Rights While the District Is Evaluating and Serving the Student

The procedural due process safeguards in the IDEA include an opportunity for the parents to examine all records relating to their child; to participate in meetings with respect to the identification, evaluation, and educational placement of the child and the provision of a FAPE; and to present complaints or request mediation with respect to any matter relating to the identification, evaluation, educational placement, or provision of a FAPE. Parents are also entitled to detailed prior written notice, in their native language, when the district proposes to initiate a change in placement of the student. 20 U.S.C. §1415 (2006). A document describing these procedural safeguards must be given to parents at particular times during the process.

b. Rights to Contest Educational Decisions Affecting the Student

One of the most important procedural protections afforded parents is the right to an impartial due process hearing to ensure that identification and evaluation procedures are followed and that appropriate placement decisions are made. When parents and the district disagree on these issues, mediation may be used so long as it is done in good faith and not as a delay to providing a formal due process hearing. If a due process hearing is needed, the IDEA provides that545 the parties have the right to an impartial hearing officer, to counsel, to present evidence and confront and compel attendance of witnesses, to prohibit the introduction of evidence that was not disclosed at least five days prior to the hearing, to written findings of fact and decisions, to appeal the decision to a higher-level state review panel or to the courts, depending on state law. 20 U.S.C. 1415(b); 34 C.F.R. §§300.507, .508, .511-.515 (2006).

c. Remedies

If a violation of the IDEA is found, parents and students have several available remedies. Courts have awarded declaratory relief such as finding that a child is IDEA eligible or that private school placement is appropriate; injunctive relief, such as compelling schools to conduct proper evaluations or assessments; compensatory education; and transportation and related services. Most courts hold that damage awards are not available for violations of the IDEA, including general damages for pain and suffering. See, e.g., Charlie F. v. Bd. of Educ. of Skokie Sch. Dist., 98 F.3d 989 (7th Cir. 1996). But recent litigation indicates this may be changing as courts are becoming more receptive to damage awards under other statutes, such as §504, if school officials engaged in intentional discrimination or egregiously disregarded the rights of students with disabilities. See, e.g., W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995).

One of the most contested remedies is tuition reimbursement to parents who have placed their child in a private school because they feel the public school is failing to provide a FAPE. In School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), the Supreme Court drew a sharp distinction between tuition reimbursement and damages, holding that the former is recoverable as a justified cost that should have been initially incurred by the school district. It extended this holding in Florence County School District v. Carter, 510 U.S. 7 (1993), to require public schools to reimburse parents the cost of private school tuition, even when the parents “unilaterally withdraw their child from a public school that provides an inappropriate public education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA.” Combined, these cases require a two-part test for parents seeking tuition reimbursement for a private placement: (1) that the public school district has failed to provide an IEP reasonably calculated to provide the student a FAPE and (2) that the private placement provides a FAPE. Congress codified these decisions and reaffirmed that a public school district is not required to fund a private school placement unilaterally selected by the parents so long as the district has offered an appropriate education. 20 U.S.C. §1412(a)(10). Most recently, the Supreme Court ruled that parents may get tuition reimbursement for a private placement, even if they have not previously received special education and related services from the public schools. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009).

Attorneys’ fees are also available to parents who are the prevailing party in a special education case. 20 U.S.C. §1415(i)(3)(B). Whether a parent is a “prevailing party” is highly debatable, particularly when there is only a partial546 victory or when the case has been settled prior to a due process hearing. See, e.g., G.M. v. New Britain Bd. of Educ., 173 F.3d 77 (2d Cir. 1999) (parent was prevailing party in claim for an independent educational evaluation that led to slight increase in services for child); T.D. v. Lagrange Sch. Dist. No. 2, 349 F.3d 469 (7th Cir. 2003) (denying attorneys’ fees because the case was settled). Attorneys’ fees can be denied, even if parents are the prevailing party, if they reject a settlement offer and fail to obtain more favorable judicial relief, if they reach a settlement without resorting to a due process hearing, if they reach a settlement pursuant to the IDEA’s dispute resolution procedures, if the fee is excessive, or if attorneys are representing their own children. The Supreme Court has also ruled that prevailing parents are not entitled to expert fees. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006).

D. CONCLUSION

The statutory protections afforded students with disabilities raise fundamental questions about our notions of equality and fairness. Students with disabilities and their parents are afforded significant procedural protections in disciplinary matters and in formulating educational plans and strategies that are not available to general education students and their parents. Even the minimal FAPE standard in Rowley—an individualized education tailored to the unique needs of each student—would benefit nondisabled students. Why not provide these rights to all students? Cost may be the overriding pragmatic consideration, but notions of equality for students with disabilities may present a larger hurdle. Society presumes that students with disabilities simply need more, and should get more, than nondisabled students, no matter what type or level of education nondisabled students receive. This view of equality, possibly premised on sympathy or on what Professor Glennon argues is the misguided view that all disabilities are objectively verifiable and inherent within us, is unique to students with disabilities. Is this notion of equality overly generous to students with disabilities, or should it be applied beyond the disability realm?

1 We do not hold today that every handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a “free appropriate public education.” In this case, however, we find Amy’s academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods school administrators, to be dispositive.

2 In his report in this case, the Administrative Law Judge explained: “Being ventilator dependent means that [Garret] breathes only with external aids, usually an electric ventilator, and occasionally by someone else’s manual pumping of an air bag attached to his tracheotomy tube when the ventilator is being maintained.…”

3 “He needs assistance with urinary bladder catheterization once a day, the suctioning of his tracheotomy tube as needed, but at least once every six hours, with food and drink at lunchtime, in getting into a reclining position for five minutes of each hour, and ambu bagging occasionally as needed when the ventilator is checked for proper functioning. He also needs assistance from someone familiar with his ventilator in the event there is a malfunction or electrical problem, and someone who can perform emergency procedures in the event he experiences autonomic hyperreflexia.

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A. PROCEDURAL DUE PROCESS

1. Notice and the Opportunity to Respond

The procedures that schools follow when disciplining, suspending, and expelling students vary among states and school districts. This variance is largely due to the Supreme Court’s holding in Goss v. Lopez. In Goss, the Court established the foundational constitutional parameters for the imposition of school discipline. But recognizing the breadth of its application, the Court chose to set a relatively minimal constitutional standard. In most instances, a school district need only provide a student with oral notice of the charges against him and a brief chance to respond. Districts are free to offer more elaborate processes—and many do—but the Constitution does not require it unless the district intends to impose a more serious long-term suspension. Even there, the process for suspending or expelling a student for a long period of time need not mirror the types of formal processes found in legal or administrative proceedings outside of schools.

While minimal due process requirements seem routine today and set relatively few limits on schools’ disciplinary power, prior to Goss, schools essentially operated their own fiefdoms in which they could discipline students however they saw fit. As noted in Goss, the state of Ohio had authorized principals to suspend students for up to ten days without offering them any process. Thus, even the most rudimentary process would have been a new imposition on some school districts. As you read Goss, consider whether the Court goes too far or not far enough in protecting students’ rights. Also, consider whether the Court’s wide deference to school administrators is appropriate. Avoid casting school districts as students’ enemies, but also remember that school administrators are no more perfect than other governmental decision makers, and a primary purpose of process is to reduce mistakes.

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Goss v. Lopez

419 U.S. 565 (1975)

Mr. Justice White delivered the opinion of the Court.

[The issue in this case is whether the Columbus, Ohio, Public School System’s (CPSS) temporary suspension of students “without a hearing either prior to suspension or within a reasonable time thereafter” violates the Due Process Clause of the Fourteenth Amendment.]

Ohio law provides for free education to all children between the ages of six and 21. Section 3313.66 of the Code empowers the principal of an Ohio public school to suspend a pupil for misconduct for up to 10 days or to expel him. In either case, he must notify the student’s parents within 24 hours and state the reasons for his action. A pupil who is expelled may appeal the decision to the Board of Education and in connection therewith shall be permitted to be heard at the board meeting. The Board may reinstate the pupil following the hearing. No similar procedure is provided for a suspended student. Aside from a regulation tracking the statute, at the time of the imposition of the suspensions in this case the CPSS itself had not issued any written procedure applicable to suspensions. Nor, so far as the record reflects, had any of the individual high schools involved in this case. Each, however, had formally or informally described the conduct for which suspension could be imposed.

The nine named appellees, each of whom alleged that he or she had been suspended from public high school in Columbus for up to 10 days without a hearing, filed an action under 42 U.S.C. §1983 against the Columbus Board of Education and various administrators of the CPSS. The complaint sought a declaration that §3313.66 was unconstitutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the procedural due process component of the Fourteenth Amendment. It also sought to enjoin the public school officials from issuing future suspensions pursuant to §3313.66 and to require them to remove references to the past suspensions from the records of the students in question.

At the outset, appellants contend that because there is no constitutional right to an education at public expense, the Due Process Clause does not protect against expulsions from the public school system. This position misconceives the nature of the issue and is refuted by prior decisions. The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. Protected interests in property are normally “not created by the Constitution. Rather, they are created and their dimensions are defined” by an independent source such as state statutes or rules entitling the citizen to certain benefits.

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Accordingly, a state employee who under state law, or rules promulgated by state officials, has a legitimate claim of entitlement to continued employment absent sufficient cause for discharge may demand the procedural protections of due process. So may welfare recipients who have statutory rights to welfare as long as they maintain the specified qualifications. Goldberg v. Kelly, 397 U.S. 254 (1970).

Here, on the basis of state law, appellees plainly had legitimate claims of entitlement to a public education. [Ohio statutes] direct local authorities to provide a free education to all residents between five and 21 years of age, and a compulsory-attendance law requires attendance for a school year of not less than 32 weeks. It is true that §3313.66 of the Code permits school principals to suspend students for up to 10 days; but suspensions may not be imposed without any grounds whatsoever. All of the schools had their own rules specifying the grounds for expulsion or suspension. Having chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct absent, fundamentally fair procedures to determine whether the misconduct has occurred.

Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so and has required its children to attend. Those young people do not “shed their constitutional rights” at the schoolhouse door. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969). “The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 637 (1943). The authority possessed by the State to prescribe and enforce standards of conduct in its schools, although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student’s legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.

The Due Process Clause also forbids arbitrary deprivations of liberty. “Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” the minimal requirements of the Clause must be satisfied. Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Board of Regents v. Roth, 408 U.S. at 573. School authorities here suspended appellees from school for periods of up to 10 days based on charges of misconduct. If sustained and recorded, those charges could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment. It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution.

Appellants proceed to argue that even if there is a right to a public education protected by the Due Process Clause generally, the Clause comes into play only when the State subjects a student to a “severe detriment or grievous loss.” The loss of 10 days, it is said, is neither severe nor grievous and the Due Process550 Clause is therefore of no relevance. Appellants’ argument is again refuted by our prior decisions; for in determining “whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.” Appellees were excluded from school only temporarily, it is true, but the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, “is not decisive of the basic right” to a hearing of some kind. The Court’s view has been that as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause. A 10-day suspension from school is not de minimis in our view and may not be imposed in complete disregard of the Due Process Clause.

A short suspension is, of course, a far milder deprivation than expulsion. But, “education is perhaps the most important function of state and local governments,” and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary.

III

“Once it is determined that due process applies, the question remains what process is due.” We turn to that question, fully realizing as our cases regularly do that the interpretation and application of the Due Process Clause are intensely practical matters and that “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” We are also mindful of our own admonition: “Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint .…By and large, public education in our Nation is committed to the control of state and local authorities.” Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

There are certain bench marks to guide us, however. Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950), said that “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” “The fundamental requisite of due process of law is the opportunity to be heard,” a right that “has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to…contest.” At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.”

It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the551 competing interests involved. The student’s interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is in fact unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.

The difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order but a valuable educational device. The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well prefer the untrammeled power to act unilaterally, unhampered by rules about notice and hearing. But it would be a strange disciplinary system in an educational institution if no communication was sought by the disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his side of the story in order to make sure that an injustice is not done. “[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights….” “Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it.”

We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.

There need be no delay between the time “notice” is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is. Lower courts which have addressed the question of the nature of the procedures required in short suspension cases have reached the same conclusion. Since the hearing may occur almost immediately following the misconduct, it follows that as a general rule notice552 and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable.

In holding as we do, we do not believe that we have imposed procedures on school disciplinarians which are inappropriate in a classroom setting. Instead we have imposed requirements which are, if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions. Indeed, according to the testimony of the principal of Marion-Franklin High School, that school had an informal procedure, remarkably similar to that which we now require, applicable to suspensions generally but which was not followed in this case. Similarly, according to the most recent memorandum applicable to the entire CPSS, school principals in the CPSS are now required by local rule to provide at least as much as the constitutional minimum which we have described.

We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, further formalizing the suspension process and escalating its formality and adversary nature may not only make it too costly as a regular disciplinary tool but also destroy its effectiveness as part of the teaching process.

On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect. He may then determine himself to summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced.

Requiring that there be at least an informal give-and-take between student and disciplinarian, preferably prior to the suspension, will add little to the factfinding function where the disciplinarian himself has witnessed the conduct forming the basis for the charge. But things are not always as they seem to be, and the student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context.

We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that in unusual situations,553 although involving only a short suspension, something more than the rudimentary procedures will be required.

Mr. Justice Powell, with whom The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join, dissenting.

The Ohio statute that creates the right to a “free” education also explicitly authorizes a principal to suspend a student for as much as 10 days. Thus the very legislation which “defines” the “dimension” of the student’s entitlement, while providing a right to education generally, does not establish this right free of discipline imposed in accord with Ohio law. Rather, the right is encompassed in the entire package of statutory provisions governing education in Ohio—of which the power to suspend is one.

The Court thus disregards the basic structure of Ohio law in posturing this case as if Ohio had conferred an unqualified right to education, thereby compelling the school authorities to conform to due process procedures in imposing the most routine discipline.

But however one may define the entitlement to education provided by Ohio law, a deprivation of not more than 10 days’ suspension from school, imposed as a routine disciplinary measure, does not assume constitutional dimensions. Contrary to the Court’s assertion, our cases support rather than “refute” appellants’ argument that “the Due Process Clause…comes into play only when the State subjects a student to a ‘severe detriment or grievous loss.’” Recently, the Court reiterated precisely this standard for analyzing due process claims: “Whether any procedural protections are due depends on the extent to which an individual will be ‘condemned to suffer grievous loss.’”

The Ohio suspension statute allows no serious or significant infringement of education. It authorizes only a maximum suspension of eight school days, less than 5% of the normal 180-day school year. Absences of such limited duration will rarely affect a pupil’s opportunity to learn or his scholastic performance. Indeed, the record in this case reflects no educational injury to appellees. Each completed the semester in which the suspension occurred and performed at least as well as he or she had in previous years. Despite the Court’s unsupported speculation that a suspended student could be “seriously damage[d],” there is no factual showing of any such damage to appellees.

The Court also relies on a perceived deprivation of “liberty” resulting from any suspension, arguing—again without factual support in the record pertaining to these appellees—that a suspension harms a student’s reputation. In view of the Court’s decision in Board of Regents v. Roth, I would have thought that this argument was plainly untenable. Underscoring the need for “serious damage” to reputation, the Roth Court held that a nontenured teacher who is not rehired by a public university could not claim to suffer sufficient reputational injury to require constitutional protections. Surely a brief suspension is of less serious consequence to the reputation of a teenage student.

554

Unlike the divergent and even sharp conflict of interests usually present where due process rights are asserted, the interests here implicated—of the State through its schools and of the pupils—are essentially congruent.

The State’s interest, broadly put, is in the proper functioning of its public school system for the benefit of all pupils and the public generally. Few rulings would interfere more extensively in the daily functioning of schools than subjecting routine discipline to the formalities and judicial oversight of due process. Suspensions are one of the traditional means—ranging from keeping a student after class to permanent expulsion—used to maintain discipline in the schools. It is common knowledge that maintaining order and reasonable decorum in school buildings and classrooms is a major educational problem, and one which has increased significantly in magnitude in recent years. Often the teacher, in protecting the rights of other children to an education (if not his or their safety), is compelled to rely on the power to suspend. [I]f hearings were required for a substantial percentage of short-term suspensions, school authorities would have time to do little else.

The State’s generalized interest in maintaining an orderly school system is not incompatible with the individual interest of the student. Education in any meaningful sense includes the inculcation of an understanding in each pupil of the necessity of rules and obedience thereto. This understanding is no less important than learning to read and write. One who does not comprehend the meaning and necessity of discipline is handicapped not merely in his education but throughout his subsequent life. When an immature student merits censure for his conduct, he is rendered a disservice if appropriate sanctions are not applied or if procedures for their application are so formalized as to invite a challenge to the teacher’s authority—an invitation which rebellious or even merely spirited teenagers are likely to accept.

The lesson of discipline is not merely a matter of the student’s self-interest in the shaping of his own character and personality; it provides an early understanding of the relevance to the social compact of respect for the rights of others. The classroom is the laboratory in which this lesson of life is best learned.

NOTES AND QUESTIONS

1. What are the personal interests at stake in Goss that trigger due process protections? The dissent argues that students’ educational interests are not absolute but explicitly limited by a statute that authorizes a principal to suspend students without hearings. Who has the better argument, the majority or dissent? Both agree, however, that state law is the source for determining whether a student has an underlying right to which federal due process attaches.

2. Is there any inconsistency between the Court’s willingness to find an educational interest sufficient to trigger due process here and its refusal in San Antonio v. Rodriguez to recognize an educational interest sufficient to trigger anything more than the most minimal level of equal protection scrutiny?

555

3. What are the key elements of due process that schools must provide? Is that process sufficient to ensure accurate results? When must the process occur? Is there any exception to a school’s responsibility to provide that process or to do so in a timely manner?

4. What is the purpose of providing students this process: to ensure accuracy, fairness, or something else?

5. What is the Court’s rationale for requiring a relatively minimal and informal amount of process? What, if anything, justifies deference toward schools and a relaxation of due process in the administration of discipline? Do the due process standards adopted in Goss provide too much deference to schools? Too little? Or do they strike the right balance between students’ rights and the practicalities of running a school? Will due process protections seriously undermine the efficiency of schools, as the dissent argues?

6. One reason for deference to schools was the notion that discipline is not necessarily meant to punish the student, but rather is a teaching tool. In this respect, school discipline is distinct from criminal punishment. School administrators are not necessarily “out to get” students in the same way a criminal prosecutor might be out to get criminals. Instead, school administrators may still be looking out for the best interests of the student they are seeking to discipline. Whatever the case may have been at the time of Goss, do these characterizations of discipline fit the modern context? If not, does the nature of due process afforded to kids need to change accordingly? Many scholars and studies suggest that a significant change occurred in school philosophy toward discipline in the late 1980s and 1990s. As a result of the high-profile nature of some school-related violence and the war on drugs, school and federal policy shifted toward quick and severe reactions to potential threats to the school environment. See generally Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 29-46 (NYU Press 2016) (tracing discipline policy from its in loco parentis origins through desegregation tensions and zero tolerance); Alicia C. Insley, Comment, Suspending and Expelling Children from Educational Opportunity: Time to Reevaluate Zero Tolerance Policies, 50 Am. U. L. Rev. 1039, 1043-1051 (2001). In the last few years, in response to grassroots advocacy, a few educators have begun to revisit this approach and scale back the application of zero tolerance. See Advancement Project, Test, Punish, and Push Out: How “Zero Tolerance” and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 34-37 (2010).

7. The Court indicates that some deprivations of education are de minimus and thus would not trigger due process protections. What sorts of deprivations or punishments might fall in this category? In contrast, the Court indicates that suspensions of ten days and longer are significant and require more than just basic oral notice and a chance to respond. What makes ten days the tipping point? Is there any argument that education has sufficiently changed since Goss that shorter suspensions warrant more process as well?

8. As detailed in Chapter 3, students’ right to education is no longer statutory but is constitutional and includes a qualitative component in many states. Does the fact that a student’s constitutional right to education is at stake dictate that a student should be entitled to more care and process in a decision as to whether to restrict that right?

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9. The Court in Goss indicated that students’ reputational liberty interests warranted due process as well, but one year later in Paul v. Davis, 424 U.S. 693 (1976), the Court held, in a noneducational context, that harm to reputation, by itself, is not a deprivation of liberty that requires due process. The Court specifically distinguished Goss, noting that Goss involved harm to both reputation and property. Lower courts have thus subsequently held that students are not entitled to due process when the only harm of discipline is reputational. See, e.g., Edwards v. Rees, 883 F.2d 882 (10th Cir. 1989); Casey v. Newport Sch. Comm., 13 F. Supp. 2d 242 (D.R.I. 1998). Students, however, have often been able to identify some harm beyond reputation to justify their claim, see, e.g., Brookhart v. Illinois, 697 F.2d 179, 184-185 (7th Cir. 1983), or proceeded under substantive due process instead.

2. Determining the Amount of Process That Is Due: Mathews v. Eldridge Balancing Test

The opinion in Goss established the principle that students have a right to due process and articulated the broad parameters of what that process looks like, but it left open several important questions regarding the specific types of process due, including whether students have a right to submit evidence, have a record prepared, appeal the initial decision, have a decision maker unconnected to the events in question present, and, in formal hearings, have an attorney present and call and cross-examine witnesses. The Supreme Court has never revisited any of these questions in the context of elementary and secondary education.

While lower courts have taken up these questions, few hard and fast rules exist as to whether a student can demand a particular type of process. As to less burdensome types of process, such as the level of formality required in notices or who amounts to an impartial decision maker, courts have sometimes been inconsistent in their results. Lower courts generally have reached consistent results as to the more formalized types of process, finding that cross-examination and advocacy by an attorney are too burdensome. But even with these more formalized processes, courts have recognized exceptional circumstances that warrant a different conclusion. In short, the process due is generally highly dependent on the punishment to be imposed, the factual dispute at issue, and the perceived burden of the process.

This highly contextualized response to due process stems from the balancing test the Court adopted the year after Goss in Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews did not involve education, but announced the generally applicable standard for assessing whether a particular process is required under due process. A court must balance four factors to determine whether a particular process is appropriate: the private interest that will be affected; the risk of an erroneous deprivation of interest under the current process; the value, if any, of additional process in reducing error; and the burden on the state of providing the additional process. For instance, the opportunity to present witnesses or have an attorney present arguably might be required when expulsion is at stake. The557 private interest is high, the burden on the school relatively low, and the potential for improving outcomes at least marginally higher. But neither witness nor an attorney would seem necessary if the punishment at stake is one-day or after-school detention. To the extent detention occurs more frequently, the burden on the state is higher and the interest of the students relatively low. Moreover, forgoing the procedures is unlikely to risk any serious likelihood of error.

Because questions of the appropriate process vary based on the allegations and punishment at stake, lower court decisions can appear at odds when, in fact, they are simply addressing distinct circumstances. More often than not, there is a paucity of judicial opinions regarding a particular process for a particular offense rather than a direct conflict among courts. The paucity of case law also stems from the nature and frequency of cases that make it to court. Short-term suspensions were the primary focus of the Court’s opinion in Goss and make up the majority of discipline that schools hand out. But short-term suspensions, as well as less serious punishments, rarely reach courts because the loss students suffer is relatively low and the cost of challenging the loss is relatively high. Most students are likely to accept these punishments regardless of the process under which the punishments were imposed, whereas students are more likely to challenge long-term suspensions and expulsions because the stakes are so high. Fortunately, these serious punishments do not occur as often. Thus, there are still relatively few cases dealing with long-term suspensions and expulsions. The overall result of these inapposite motivations and costs is very little case law on day-to-day discipline and sporadic case law on more serious discipline.

Definitive rules of law can also be difficult to extrapolate from the cases that courts do decide because the decisions are often based on a mix of state and federal law. Goss sets only the bare minimum for due process; states are free to provide additional protections. In fact, several states’ statutes establish explicit process rights in regard to notice of charges, appeals, and expulsions that may exceed Goss’s requirements. When a student challenges a punishment in such a state, he or she is generally making a statutory and constitutional claim. When courts sustain those claims, it is not always clear whether the process was insufficient under constitutional law, state law, or both.

Real-world situations, however, demand answers rather than rules of thumb. The purpose of the subsequent cases and materials is to provide a basic framework for approaching these cases and issues. As emphasized in Goss, the major demarcating line regarding what process is required is whether the student is facing routine discipline that does not lead to suspension, a short-term suspension, or a long-term suspension. This line is the key basis on which to categorize and compare cases.

One approach is to assess what other courts have said about a particular process, regardless of the punishment at stake, and then assign additional weight to or discount the decision depending on the seriousness of the punishment. For instance, if various courts reject cross-examination as a necessary process in expulsion hearings, it is highly unlikely a court would require cross-examination in a one-day suspension under any circumstances. Likewise, if courts have permitted students to bring advocates with them to a short-term suspension,558 they would almost certainly permit the same in an expulsion, and might also be inclined to go one step further by allowing a student to be represented by an attorney. Finally, where no significant case law speaks toward a particular process, the most valuable approach may be to assess the burden of the process and compare it to case law as to more and less onerous processes.

With that framework in mind, the following case takes up the issues of cross-examination of students and administrators, the impartiality of decision makers, and the ex parte consideration and presentation of evidence in the context of long-term suspensions. As you read the case, consider its implications in other discipline contexts. Also, consider whether the court’s reasoning regarding why some processes are not necessary is compelling or would be subject to challenge in other analogous contexts.

Newsome v. Batavia Local School District

842 F.2d 920 (6th Cir. 1988)

On appeal, [Arthur] Newsome argues that the district court erred in holding that the procedures employed by Batavia School District in expelling him did not violate his right to procedural due process of law. The procedural defects alleged by Newsome involve the denial of his request to cross-examine the witnesses against him, the denial of his right to an impartial tribunal, and the consideration, by that tribunal, of evidence not made available to Newsome.

On November 3, 1986, Newsome was summoned to the office of the principal, Daniel Swart, and accused of possessing and offering a marijuana cigarette for sale on high school property. Newsome denied the charges and asked the source of the accusations. The principal then informed him that the information had been obtained through interviews with two students but refused to identify them.

[A week later,] a suspension hearing was held before Batavia School Superintendent James Fite. The principal recounted the substance of the student accusations. At no time were the names of the student accusers disclosed. Apparently, at some point, the superintendent privately interviewed the two students. [Juvenile Court officers testified that] a urinalysis which Newsome had taken was negative for drug use [and] recommended that Newsome be immediately returned to school. [T]he superintendent and principal adjourned to discuss the case. [T]he superintendent decided to [offer] Newsome a clean disciplinary record if he would accept transfer to [a vocational school]. Newsome declined this offer [and] was expelled for the remainder of the fall semester.

On November 24, 1986, the School Board met to consider Newsome’s appeal. Newsome was represented by counsel during this hearing. The principal and superintendent [began] by recounting the statements of the two accusing students. Again, they did not disclose the names of these students but affirmed their belief that the students were telling the truth. [T]he superintendent stated559 that his decision to expel Newsome was based solely on the statements of the two student informants. Newsome’s attorney requested an opportunity to cross-examine the principal and superintendent, but this request was denied. The meeting concluded with Newsome’s testifying that he did not possess or offer to sell marijuana on school property. Newsome’s attorney then was allowed a closing argument.

[T]he school board, together with the principal and superintendent, reviewed the evidence [in private, and the school board unanimously affirmed the expulsion].

On December 10, 1986, Newsome filed this action. On December 22, 1986, the district court conducted a self-styled “nonevidentiary hearing” to garner additional information. In response to questioning from the court, the superintendent disclosed for the first time that he presented evidence to the school board during their closed deliberations that he had not disclosed during his testimony at the open hearing. [He told the school board that an alcoholism counselor, Jean Wessler, had told him that Newsome confessed his drug possession to her. After learning this, Newsome’s attorney approached Wessler. Wessler executed an affidavit denying that Newsome made a confession or that she had disclosed any confession to the superintendent.]

[II]

[W]hile the Supreme Court has addressed the issue of what process is due public school students in short suspension cases, Goss v. Lopez, the Court has specifically left open the question of what process is due in long-term suspensions (suspensions exceeding ten days) and expulsion cases. In the Court’s words, “We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding ten days. Longer suspensions or expulsion for the remainder of the school term, or permanently, may require more formal procedures.”

Without the aid of Supreme Court authority directly on point, we are left with resolving the procedural due process issues presented in this appeal under the more general rubric of Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews provides for a flexible, policy-oriented analysis of procedural due process issues in which three competing factors are balanced against each other. These factors are: (1) the private interest that will be affected by the official action; (2) the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the fiscal and administrative burden that the additional or substitute procedural requirements would entail.

Consequently, our analysis of Newsome’s procedural due process claims will focus on the inquiry: “Is the probable value of the additional, pre-expulsion, procedural safeguards proposed by Newsome to protect his important interest in a free public education outweighed by the burden that would be placed upon the school district by the additional safeguards?” After careful inquiry, we conclude that Newsome was denied due process by the superintendent’s disclosure to the school board of Jean Wessler’s alleged statement to him when such statement had not been introduced during the open hearing, but that he was not denied560 due process by not being permitted to cross-examine or to know the names of his student accusers, by not being permitted to cross-examine the school principal and superintendent, and by not being permitted to be present at the school board’s closed deliberations even though the school principal and superintendent were allowed to attend.

Newsome first contends that he was denied due process of law at the school board hearing when the board denied his request for permission to cross-examine his student accusers or to at least know their identities. We disagree.

The value of cross-examination to the discovery of truth cannot be overemphasized. “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” In the instant case, allowing Newsome, through his attorney, to cross-examine his student accusers, or even merely to know their names, would have afforded Newsome the opportunity to challenge the students’ credibility. For example, a prior altercation of some sort between Newsome and his accusers might have been brought to light through cross-examination or by disclosure of their identities.

The value of cross-examining student witnesses in school disciplinary cases, however, is somewhat muted by the fact that the veracity of a student account of misconduct by another student is initially assessed by a school administrator—in this case, the school principal—who has, or has available to him, a particularized knowledge of the student’s trustworthiness. The school administrator generally knows firsthand (or has access to school records which disclose) the accusing student’s disciplinary history, which can serve as a valuable gauge in evaluating the believability of the student’s account. Additionally, the school administrator often knows, or can readily discover, whether the student witness and the accused have had an amicable relationship in the past. Consequently, the process of cross-examining the student witness may often be merely duplicative of the evaluation process undertaken by the investigating school administrator.

The value of cross-examining student witnesses in pre-expulsion proceedings must be set against the burden that such a practice would place upon school administration. Today’s public schools face severe challenges in maintaining the order and discipline necessary for the impartation of knowledge. A recent study shows that today’s schoolteachers are concerned with drug abuse, rape, robbery, assault, burglary, arson, and bombings. Indeed, a recent Supreme Court decision noted that “drug use and violent crime in the schools have become major social problems.” New Jersey v. T.L.O., 469 U.S. 325, 339 (1985).

In this turbulent, sometimes violent, school atmosphere, it is critically important that we protect the anonymity of students who “blow the whistle” on their classmates who engage in drug trafficking and other serious offenses. Without the cloak of anonymity, students who witness criminal activity on school property will be much less likely to notify school authorities, and those who do will be faced with ostracism at best and perhaps physical reprisals. Giving due weight to the important interest a student accused of serious561 misconduct has in his public education, we conclude that the necessity of protecting student witnesses from ostracism and reprisal outweighs the value to the truth-determining process of allowing the accused student to cross-examine his accusers.

Newsome’s second allegation of procedural due process deprivation concerns the board’s denial of his attorney’s request to cross-examine the school principal and superintendent. Newsome postulates that, had he been afforded the opportunity to cross-examine the two school administrators, flaws in their investigation of the alleged drug trafficking incident, as well as personal animus against Newsome, might well have surfaced. We do not take issue with Newsome’s claim that cross-examination would have improved the fact-finding process, particularly since, in his case, cross-examination of the school superintendent during the school board hearing may well have brought out the superintendent’s erroneous reliance on Wessler’s purported statement concerning Newsome’s alleged confession.

Again, however, Mathews instructs us to balance the benefit that would be derived from the cross-examination of school authorities during pre-expulsion proceedings, together with the important interest that a public school student has in his education, against the burden that cross-examination would place on the school board or other decisionmaker. We hold that the burden of cross-examination on the administration of school discipline outweighs the benefits to be derived from that procedure.

School boards and administrators are charged with a variety of responsibilities critical to the effective operation of our public schools. These responsibilities include, not only meting out disciplinary punishment for student infractions of school rules, but also hiring and firing teachers and other school personnel, planning curricula, meeting the dietary and health needs of the student population, assisting in college and vocational placement, supplying and maintaining the school buildings, providing challenging and rewarding extra-curricular activities, and doing all the above often within an increasingly tighter budget. School boards and administrations are not quasi-judicial [like other governmental bodies]. To saddle them with the burden of overseeing the process of cross-examination (and the innumerable objections that are raised to the form and content of cross-examination) is to require of them that which they are ill-equipped to perform. The detriment that will accrue to the educational process in general by diverting school board members’ and school administrators’ attention from their primary responsibilities in overseeing the educational process to learning and applying the common law rules of evidence simply outweighs the marginal benefit that will accrue to the fact-finding process by allowing cross-examination.

[We, like other courts, acknowledge there “is a seductive quality to the argument” that more formalized hearings and adherence to evidentiary rules are just as necessary to protect students’ important interests in education as they are to protect welfare benefits. But to accede to this argument would move the schools’ disciplinary process just one step closer to criminal trials.

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Important as educational rights are, they can be fairly adjudicated based on hearsay evidence school administrators collect in investigating the incidents. “‘We decline to place upon a board of laymen the duty of observing and applying the common-law rules of evidence.’”]

Newsome’s third allegation of due process deprivation involves the participation of the school principal and the superintendent in the closed deliberations of the school board when Newsome and his counsel were not allowed to attend. Newsome contends that such participation by the principal, who investigated the allegations of Newsome’s drug trafficking and who recommended suspension, and the superintendent, who ordered Newsome expelled from school for the remainder of the fall semester, biased the school board and deprived him of his right to an impartial decisionmaker. We disagree.

We note initially that the principal and superintendent were nonvoting participants in the board’s deliberation process whose involvement was limited to participating in the board’s discussion. Although we recognize that participation by the investigating administrators in the deliberation process of the fact-finders is an open invitation for the administrators to bring up evidence of the student’s guilt which had not been disclosed to the student as required by Goss, we cannot say that, as a general matter, it is a violation of due process for investigating administrators to participate in the deliberation process.

In Brewer v. Austin Indep. School Dist., 779 F.2d 260 (5th Cir. 1985), the Fifth Circuit, in a case involving the expulsion of a high school student for possession of marijuana, pointed out that: “A school administrator involved in the initiation and investigation of charges is not thereby disqualified from conducting a hearing on the charges, although the facts of an occasional case may demonstrate that a school official’s involvement in an incident created a bias ‘such as to preclude his affording the student an impartial hearing.’” In the instant case, then, not only was it permissible for the school principal and superintendent to participate in the school board’s deliberations, it would not be a denial of due process for them to have voted with the board, or even to have held the pre-expulsion hearing themselves and reached the final, binding decision concerning Newsome’s expulsion.¹ A student faced with expulsion has the right to a pre-expulsion hearing before an impartial trier-of-fact—he does not have the right to a full-blown administrative appellate process.

Newsome last complains that he was denied procedural due process when the superintendent disclosed to the school board, during their closed563 deliberations, new evidence which had not been presented during the open hearing. We agree.

While Goss specifically limited itself to “the short suspension, not exceeding ten days,” it nevertheless establishes the minimum requirements for long-term expulsions as well. The minimum requirements established for school expulsions in Goss are “oral and written notice of the charges against [the student] and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” In the instant case, Newsome received written notice of the charge that he had possessed marijuana with the intent to distribute, and he denied the allegation. Consequently, it was incumbent upon the school officials who possessed evidence of Newsome’s alleged involvement in the marijuana incident to inform Newsome, during the school board hearing, of their evidence so that he would have an opportunity to rebut the evidence.

The superintendent failed to comply with this minimum procedural safeguard required by Goss during the school board hearing. Rather than disclosing to Newsome during the open hearing before the school board that Jean Wessler had informed him that Newsome had confessed to her his involvement in the marijuana incident so that Newsome would have an opportunity to rebut this item of evidence, the superintendent waited until the closed deliberation session to apprise the school board of this information. Such a tactic completely deprived Newsome of any opportunity to rebut the evidence and amounted to a clear deprivation of his right to procedural due process of law.

For the forgoing reasons, the judgment of the district court is reversed and the case remanded to the district court to determine whether Newsome is entitled to the injunctive and compensatory relief he seeks. To the extent that Newsome seeks money damages to compensate him for the violation of his fourteenth amendment right, he must demonstrate, on remand, that he suffered actual injury (such as mental and emotional distress) caused by the violation. To the extent that Newsome seeks reparative relief aimed at restoring him to the position he would have occupied but for the due process violation, he is entitled to such relief unless the school district can prove, by a preponderance of the evidence, that, even had it not deprived Newsome of his right to procedural due process, he would have still rightfully been expelled. Carey v. Piphus, 435 U.S. 247 (1978).

NOTES AND QUESTIONS

1. What standard does the court use to evaluate whether each of the processes in question are constitutionally required? Why does this court find that the opportunity to cross-examine witnesses and administrators is not required? If this case had not involved a serious charge like drug possession and the potential for appraisals against the accusers, would cross-examination have564 been appropriate? Why was the superintendent’s private presentation of evidence to the board problematic when no other procedural flaws were?

2. The court places significant faith in the administrator’s ability to arrive at the truth without following any special procedures, emphasizing that administrators have access to information, records, and other student history that gives them a special ability to assess a student witness’s trustworthiness. If discipline is such a frequent and pressing problem, is it realistic to assume that administrators have the time to consult records of the personal relationship with students that assures trustworthiness of witnesses or knowledge of private disputes between friends that might taint reliability?

3. The court indicates that allowing for cross-examination would place administrators in a situation where they would be expected to know rules of evidence and respond to objections. Would it be possible to allow for cross-examination without burdening administrators with rules of evidence?

4. Without the benefit of cross-examination, is it likely that a student would be able to uncover biases and inappropriate behavior on the part of his accusers? Without advance knowledge of the bias, is it likely that a student would even bother suing (because he knows he has no claim on the cross-examination issues)? Here, Newsome’s discovery was fortuitous. The information was not disclosed until the judge held an evidentiary hearing and questioned the superintendent. Yet, if one were to assume that schools reach the correct result in most cases without cross-examination, allowing for cross-examination would impose a significant burden. Are there reasons we might tolerate a higher error rate in schools when we will not tolerate it in other contexts? Is there any way to protect future students without overburdening schools?

5. The constitutional problem in Newsome was that the superintendent presented evidence to the board that was not available to Newsome. Does allowing single individuals to participate at all levels of the investigation and decision-making process increase the risk that information that is not disclosed to students will be considered against them? Do the practicalities of operating a school and the good faith of administrators make this a risk the law must tolerate?

6. If a school or state extends students procedural protections beyond what federal due process requires but then fails to follow its own rules in regard to a particular student, should the failure amount to a violation of due process?

a. Impartial Decision Makers

Courts agree with Newsome that a due process hearing officer need not be a third party akin to a judge. A hearing officer may be a teacher or an administrator who works for the school, so long as he or she acts in an unbiased capacity. See, e.g., Jennings v. Wentzville R-IV Sch. Dist., 397 F.3d 1118, 1125 (8th Cir. 2005). Moreover, familiarity with the facts of the case before the hearing takes place, or an administrator’s role as an investigator before sitting as a decision maker, does not necessarily preclude the person from later serving as an adjudicator. Generally, courts presume that the decision maker hearing the student’s case is impartial. The burden rests on the student to demonstrate actual bias if he or565 she believes that the hearing officer is not neutral. See Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 497 (1976) (referring to the “presumption of honesty and integrity” of decision makers in school board hearings); Jennings, 397 F.3d at 1125 (same). Although a court will not presume bias, students can point to the decision maker’s prior involvement in the incident as potential evidence of bias. Brewer v. Austin Indep. Sch. Dist., 779 F.2d 260, 264 (5th Cir. 1985); deKoevend v. Bd. of Educ. of W. End Sch. Dist. RE-2, 688 P.2d 219 (Colo. 1984). As one court put it, “[w]hile the Constitution does not guarantee a decision maker free from the appearance of bias, it does require one who is free of actual bias. Due process violations may therefore occur when the principal is biased or ‘in any way unable to function fairly as a trier of fact.’” Riggan v. Midland Indep. Sch. Dist., 86 F. Supp. 2d 647, 656-657 (W.D. Tex. 2000) (quoting Murray v. W. Baton Rouge Parish Sch. Bd., 472 F.2d 438, 443 (5th Cir. 1973)). For a more detailed overview of who can and cannot serve as a hearing officer, see Larry Bartlett & James McCullagh, Exclusion from the Educational Process in the Public Schools: What Process Is Now Due, 1993 B.Y.U. Educ. & L.J. 1, 24 (1993).

b. Burden of Proof

The court in Newsome did not mention it, but the value of cross-examination presumably varies depending on the substance of the testimony against a student and the weight of the collective evidence. Various courts have indicated that administrators need substantial evidence to justify their decision to punish a student. Johnson v. Collins, 233 F. Supp. 2d 241, 248 (D.N.H. 2002); Carey ex rel. Carey v. Maine Sch. Admin. Dist. No. 17, 754 F. Supp. 906, 919 (D. Me. 1990); Bd. of Educ. of Monticello Cent. Sch. Dist. v. Comm’r of Educ., 91 N.Y.2d 133, 140-141 (1997); see also Mills v. Bd. of Educ. of D.C., 348 F. Supp. 866, 882 (D.D.C. 1972) (presumption of innocence). Where the only evidence on point is conflicting, a substantial evidence standard ought to increase the value of cross-examination or require the decision maker to collect additional outside evidence. Evidence relied on in disciplinary decisions need not meet the level of reliability required in court. For instance, hearsay evidence is entirely appropriate, so long as it is “competent and substantial” evidence of the student’s participation in the conduct charged. Monticello Cent. Sch. Dist., 91 N.Y.2d at 141. Moreover, the decision maker is free to draw reasonable inferences based on the hearsay evidence. Id.

c. Appeals

In Newsome, the district afforded the student a right of appeal to the school board. With suspensions of ten days or less, courts tend to treat the appeal as gratuitous since students are not even entitled to a formal hearing. See Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 569 (6th Cir. 2011) (citing various sources). With long-term suspensions and expulsions, appeals are commonly566 offered, but whether they are constitutionally required is less clear. Given that not all students will appeal their punishment, the administrative burden of providing appeals for long-term suspensions is lower and the student interest necessarily involves a severe loss of education rights. Both factors would balance the scales toward requiring an appeal. However, because so many state statutes and local district policies provide for an appeal in long-term suspensions, courts have not frequently had occasion to consider the issue. More often, litigation in regard to an appeal involves a dispute over what process was afforded at the appeal. As the court in Newsome found, the student would have no right to a “full-blown” appeal. Should appeals involve a de novo review of the administrator’s decision or a presumption that the punishment was appropriate? While it is often unclear because formal procedural rules do not apply, among those cases that make it to court, most school boards and appellate officers seem to extend substantial deference to whomever made the initial determination of discipline. With that said, if a district affords a student a well-organized and fair appeal, the appeal potentially renders any deficiencies in the initial hearing process moot.

d. Cross-Examination

A few courts have disagreed with Newsome and found that cross-examination was warranted in long-term suspension hearings or when witnesses’ statements were inconsistent. See, e.g., Dillon v. Pulaski Cty. Special Sch. Dist., 594 F.2d 699 (8th Cir. 1979) (required in expulsion); Carey, 754 F. Supp. at 906; DeJesus v. Penberthy, 344 F. Supp. 70, 76 (D. Conn. 1972); Colquitt v. Rich Twp. High Sch. Dist. No. 227, 699 N.E.2d 1109, 1115-1116 (Ill. Ct. App. 1998); In re E.J.W., 632 N.W.2d 775 (Minn. Ct. App. 2001) (required in expulsion). One can imagine, however, situations where the accusations are numerous, a student has confessed, a student wants to cross-examine his accusers just for the sake of intimidation, or the student is simply trying to force an administrator to build a case in a normal prosecutorial sense. In such instances, courts reject demands for cross-examination. See, e.g., Newsome v. Batavia Local Sch. Dist., 842 F.2d 920 (6th Cir. 1988) (prevent witness intimidation); Dornes v. Lindsey, 18 F. Supp. 2d 1086 (C.D. Cal. 1998) (protect whistleblower); Carey, 754 F. Supp. at 919 (after indicating cross-examination is generally necessary, finding no constitutional violation because student had confessed to accusations).

e. Right to Counsel

Prior to Goss, circuit courts reached varying outcomes regarding whether students are entitled to have counsel present in formal school disciplinary proceedings. More recent cases have sought a middle ground whereby students might have the right to have counsel present to advise them, but that right would not include permitting the attorney to act in the traditional role of567 representing and speaking on behalf of a student or cross-examining witnesses. See, e.g., Osteen v. Henley, 13 F.2d 221, 225 (7th Cir. 1993); Newsome, 842 F.2d at 925-926; Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir. 1988) (holding that unless a student is facing criminal charges, representation by counsel is not necessary at disciplinary hearings). As with all aspects of a disciplinary proceeding, courts focus on the administrative burden that requiring counsel would have on the day-to-day operation of the school in determining the necessity of allowing students access to counsel.

f. Detailed Notice

With relatively minor punishments or short-term suspension, basic verbal notice of the allegations is sufficient. Goss v. Lopez, 419 U.S. 565 (1975). With long-term suspensions, more formal notice is required. That notice ought to include more than just a conclusory statement that a violation has occurred. Without some specific details, a student cannot fully respond or prepare an effective defense. See, e.g., Bd. of Educ. of Monticello Cent. Sch. Dist. v. Comm’r of Educ., 91 N.Y.2d 133, 139 (1997). With that said, notice does not have to take the form of a criminal indictment and need not include every factual allegation or every detail of every charge. See, e.g., Arrington v. Eberhart, 920 F. Supp. 1208, 1219 (M.D. Ala. 1996). In short, the key requirement of constitutional notice is not its form but its function. The question is whether a student receives some form of notice sufficient to permit the student to respond to the charges. See, e.g., Riggan v. Midland Indep. Sch. Dist., 86 F. Supp. 2d 647 (W.D. Tex. 2000). In applying this principle, courts have split over whether a student must be given notice of the potential witnesses who might testify against him at the hearing. Several courts reason that notice of these witnesses is required, but others reason that notice is not required so long as it does not materially prejudice the student’s defense at the hearing. Compare Keough v. Tate Cty. Bd. of Educ., 748 F.2d 1077, 1081-1082 (5th Cir. 1984); Warren Cty. Bd. of Educ. v. Wilkinson, 500 So. 2d 455, 460-461 (Miss. 1986), with Nash v. Auburn Univ., 812 F.2d 655, 663 (11th Cir. 1987); Whiteside v. Kay, 446 F. Supp. 716, 721 (W.D. La. 1978). Regardless, some state statutes mandate specific forms of notice to students facing expulsion or long-term punishment.

g. Transcripts

Courts generally refrain from requiring transcripts or recordings of a hearing so long as some other record of the proceedings is kept (written notes or summary). While favoring some form of a record, they have not, however, specifically held it to be constitutionally required. See, e.g., Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 636 (6th Cir. 2005); Escatel v. Atherton, 1997 WL 264345, at *2 (N.D. Ill. May 8, 1997). Some state statutes require a record of the proceedings in some form. See, e.g., Tenn. Stat. Ann. §49-6-3401(c)(6) (2012).

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PROBLEM

Alvin and Simon are sophomores at Clinton High School. They have been best friends for years. One day during the fall semester, they were talking in hushed tones between classes in front of Alvin’s locker. Ted had never cared much for either Alvin or Simon and attempted to listen in on their conversation from a few lockers down. Ted could not make out the entire conversation, but believes he heard the word “marijuana” at one point and shortly thereafter heard “let’s put it in here.” He then saw Alvin bend down and appear to stuff a package into his locker. Ted relayed this story to the principal, Mr. Smith, although Ted did not express any uncertainty about what he heard or saw. Smith sent Ted back to class and called Alvin and Simon to his office. Smith questioned them extensively. They both denied any connection to drugs. A search of their lockers did not reveal any drugs, but Smith believes Alvin and Simon are lying and intends to expel them. He had heard another similar rumor about them last year.

Has Smith afforded the boys sufficient due process at this point? Has he collected sufficient evidence? If not, what other processes are the boys due, and what evidence is necessary?

3. Determining What Interests Require Due Process

The previous cases address the topic of what process is due, as they all involve some underlying deprivation of education that demands due process. A preliminary question, however, is often whether there is an underlying interest at stake that even requires due process. For instance, when a school punishes student misbehavior by withdrawing privileges to ride the bus, excluding a student from extracurricular activities, or requiring a student to stay after school, the student may not suffer a loss that implicates constitutional protection. Or a student may have engaged in academic rather than behavioral misconduct, and the consequences at issue are academic rather than suspension. Likewise, some schools continue to use corporal punishment as a form of discipline. With corporal punishment, bodily integrity, rather than an educational interest, is at stake. Does the loss of privileges, academic discipline, or physical punishment warrant due process? If so, should the process be distinct from the process required for suspension and expulsion? The following cases and materials address these questions.

a. In-School Suspensions

Laney v. Farley

501 F.3d 577 (6th Cir. 2007)

An in-school suspension could, but does not necessarily, deprive a student of educational opportunities in the same way an out-of-school suspension569 would: “Under certain circumstances, in-school isolation could well constitute as much deprivation of education as at-home suspension. In other words, a student could be excluded from the educational process as much by being placed in isolation as by being barred from the school grounds. The primary thrust of the educational process is classroom instruction; in both situations the student is excluded from the classroom. This is not to say that any in-school detention would necessarily be equivalent to a suspension; it would depend on the extent to which the student was deprived of instruction or the opportunity to learn.” Cole v. Newton Special Mun. Separate Sch. Dist., 676 F. Supp. 749, 751-752 (S.D. Miss. 1987), aff’d, 853 F.2d 924 (5th Cir.1988).

[In the instant case, the student’s] in-school suspension was unlike the out-of-school suspensions discussed in Goss. Tennessee students assigned to in-school suspension remain in the school setting and are expressly “required to complete academic requirements.” A student under in-school suspension is “recorded as constituting a part of the public school attendance in the same manner as students who attend regular classes.” Unlike students in out-of-school suspensions, students under in-school suspensions are not denied all educational opportunities, even though they are removed from their classrooms.

Other courts encountering the issue under similar circumstances have reached the sensible conclusion that in-school suspensions do not implicate a student’s property interest in a public education. The Eighth Circuit stated as much when a special education student received a three-day in-school suspension due to tardiness and was isolated in a special classroom. See Wise, 855 F.2d at 563 n.3. The student completed all his assigned work during the suspension and did not fall behind in his school work. The Wise court said, “we do not believe…that the Goss decision requires adherence to the strictures of procedural due process in the context of a temporary in-school suspension…. In-school suspension does not exclude the student from school and consequently a student’s property interest in a public education is not implicated.” See also Fenton v. Stear, 423 F. Supp. 767, 772 (W.D. Pa. 1976) (three-day in-school suspension not sufficient to constitute a deprivation of a property interest); Dickens v. Johnson County Bd. of Educ., 661 F. Supp. 155 (E.D. Tenn. 1987) (holding that interference with educational opportunity was trivial and property interest was not implicated [by]”timeout” in a three-sided cardboard carton for as long as four and one-half hours on six consecutive days). We agree with these views.

Furthermore, [the school board] analogizes the in-school suspension with an imposition of attendance at an alternative school. This Court has suggested that an imposition of a ten-day attendance at an alternative school may not give rise to procedural due process, “absent some showing that the education received at the alternative school is significantly different from or inferior to that received at his regular public school.” Buchanan v. City of Bolivar, 99 F.3d 1352, 1359 (6th Cir. 1996). No such argument could be made on our facts. We conclude, therefore, that [a] one-day in-school suspension does not implicate a property interest in public education.

570

NOTES AND QUESTIONS

1. Goss held that due process applied because there was both an educational interest and a liberty interest at stake. Is it possible that Laney’s reputation is sufficiently damaged by in-school suspension (ISS) that due process ought to apply? This court and others have said no. See, e.g., Laney v. Farley, 501 F.3d 577, 583 (6th Cir. 2007); Fenton v. Stear, 423 F. Supp. 767, 773 (W.D. Pa. 1976). In fact, after Goss, courts shied away from requiring due process for an injury that was only reputational and, instead, suggested that due process applies only when there is some injury beyond just reputation. See, e.g., Siegert v. Gilley, 500 U.S. 226 (1991); Paul v. Davis, 424 U.S. 693, 710 (1976); see also Lee E. Teitelbaum, School Discipline Procedures: Some Empirical Findings and Some Theoretical Questions, 58 Ind. L.J. 547, 586 (1983).

2. The court in Laney cites to various other courts treating in-school suspension of a couple of days as insufficient to warrant due process. In another unpublished opinion, the Sixth Circuit also held that a ten-day ISS did not require due process either, reasoning that the student was still in school and had not lost educational benefits. Wayne v. Shadowen, 15 F. App’x 271, 290 (6th Cir. Ky. 2001). In terms of the low-level infractions that land students in ISS, ISS is certainly less serious than out-of-school suspension. But some schools allow suspended students to complete their work assignments from home. In terms of the educational opportunities that students receive, does ISS substantively differ from out-of-school suspension (other than the fact that ISS involves on-campus study and has minimal reputational effects)? Are the courts correct that students do not suffer an educational loss in ISS? What if a student were repeatedly assigned to ISS during the course of the year or for extremely long periods? Given the low-level infractions that lead to ISS, would requiring due process hearings impose a burden on schools? Some courts have left open the possibility that classroom exclusion could eventually amount to the equivalent of suspension. But see Coutre v. Albuquerque Pub. Sch., 535 F.3d 1243, 1257 (10th Cir. 2008) (finding that twelve total hours of timeout over the course of two and a half months was not equivalent to suspension).

As a less severe punishment than ISS, teachers or administrators may also exclude students from class by temporarily sending them into the hallway, to timeout, or to some other place of isolation. Courts have found this educational deprivation de minimus and insufficient to invoke due process. See, e.g., Coutre, 535 F.3d at 1243; Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1080-1081 (5th Cir. 1995); Dickens v. Johnson Cty. Bd. of Educ., 661 F. Supp. 155 (E.D. Tenn. 1987).

b. Assignment to Alternative School

The court in Laney cites to its previous decision in Buchanan v. City of Bolivar, which suggested that assignment to an alternative school would not trigger due process protection absent a showing that the education delivered there was significantly inferior. Other courts have reached similar conclusions or alluded571 to the same outcome. See, e.g., Nevares v. San Marco Consol. Ind. Sch. Dist., 111 F.3d 25, 26-27 (5th Cir. 1997); C.B. v. Driscoll, 82 F.3d 383, 389 n.5 (11th Cir. 1996); Doe v. Bagan, 41 F.3d 571, 576 (10th Cir. 1994); Zamora v. Pomeroy, 639 F.2d 662, 669-670 (10th Cir. 1981). Many of these decisions preceded the rapid expansion of alternative schools in recent decades and may not take into serious account the prevailing circumstances in many alternative schools. First, while it is true that alternative schools in contrast to long-term suspension do not deprive students of all education, alternative schools are often the punishment for the most serious types of infractions a student might commit. See, e.g., Langley v. Monroe Cty. Sch. Dist., 264 F. App’x 366 (5th Cir. 2008) (alcohol on campus); see also Elbert H. Aull IV, Zero Tolerance, Frivolous Juvenile Court Referrals, and the School-to-Prison Pipeline: Using Arbitration as a Screening-Out Method to Help Plug the Pipeline, 27 Ohio St. J. on Disp. Resol. 179 (2012) (characterizing alternative schools as a means to deal with students who traditionally would have been suspended). Second, consistent with the first point, rather than expel a student and limit all educational opportunity, some districts send students to alternative school in conjunction with expelling them from the general schools. Aull, supra, at 194 (“[S]ome students who are transferred to alternative schools in conjunction with excessive zero tolerance penalties decide to seek GEDs, or simply drop out of school, instead of attending the nontraditional program.”). Third, school districts can and do assign students to alternative schools for extended periods of time, including for the remainder of the school year. Fourth and most important, the education delivered at alternative schools is generally different from, and qualitatively inferior to, regular school. As a general matter, students from various grades attend the same alternative school and sit in the same classroom. A single teacher may be responsible for “teaching” the students all of the subject areas. Because the student enrollment is smaller at alternative schools, these schools may also lack the capacity to deliver consistent special education services to the students who are entitled to them. As one report charges, “many alternative schools are no more than holding pens for children considered to be troublemakers.” Advancement Project, Opportunities Suspended: The Devastating Consequences of Zero-Tolerance and School Discipline 14 (2000). But see Marner v. Eufaula City Sch. Bd., 204 F. Supp. 2d 1318, 1324 (M.D. Ala. 2002) (indicating that while students did not receive “classical instruction” in alternative school, students did have access to one-on-one assistance and instruction that permitted some students to improve their grades). Should the burden be on students to demonstrate inferior educational opportunities, or should schools shoulder the burden of due process before sending students to alternative schools?

One commentator, Maureen Carroll, cautions against placing too much weight in negative decisions and suggests courts have taken note of the prevailing realities of alternative school. She writes:

In other circuits, the absence of explicit holdings on the issue should not be interpreted as agreement that disciplinary transfer plaintiffs must meet a high injury threshold in order to establish a greater than de minimis interference with the protected interest in receiving a public education. To the contrary, many courts have set a low threshold for disciplinary572 transfer claims precisely by not addressing the question explicitly. In decisions issued by the Ninth Circuit and district courts in the Second and Seventh Circuits, courts have treated an involuntary removal from a particular school as an expulsion even though an alternative educational program was provided. Requiring the full due process protections associated with expulsion in disciplinary transfer cases amounts to an acknowledgement that a disciplinary transfer not only implicates a student’s constitutionally protected interest in receiving a public education, but involves significant harm to that interest.

Maureen Carroll, Racialized Assumptions and Constitutional Harm: Claims of Injury Based on Public School Assignment, 83 Temp. L. Rev. 903, 914 (2011). Carroll also notes that some state statutes have implicitly recognized as much by providing hearings prior to alternative school assignment, which in those states eliminates due process challenges that students might otherwise have raised in regard to alternative school assignments. Id. Carroll also points out that the Supreme Court found a sufficient injury in school assignments in Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701 (2007), to trigger equal protection analysis, even though there was no showing of inequality between the schools themselves. Carroll, supra, at 915.

In those states where courts have held that students have a constitutional right to qualitative or equitable education, transfers to alternative schools may invoke a more rigorous analysis. That issue is taken up later in the chapter.

c. Removal from Charter Schools

While still enrolling a relatively small portion of public school students nationally, charter schools are growing exponentially in many locations. A full discussion of charter schools is in Chapter 13. For now, it is important to note the different approach many charters take to discipline, the legal leeway that some courts have afforded them, and the potential effect this has had on the instances of discipline in charter schools. First, several charter schools are premised on a stricter form of discipline, which produces school exclusions far beyond the average in traditional public schools. Carver Collegiate Charter School in New Orleans, for instance, operates on a demerit system. When students accumulate too many demerits, they are suspended. According to a complaint filed by civil rights advocates, the school’s out-of-school suspension rate is 68.85 percent. The behavior leading to demerits and suspensions, however, would go completely unnoticed in almost all traditional public schools, even those employing the harshest zero-tolerance policies.

The civil rights complaint offered this summary of discipline policies at Carver Collegiate and two other charter schools in New Orleans:

These schools feature a culture of hyper-discipline that is punitive and demeaning to students. The schools demand a uniformity among the students and enforce it with harsh discipline for petty matters such as: (1) requiring all students to firmly shake the hands of their teachers and administrators at the beginning of each day and before each class; (2) walking straight on a line; (3) being required to be silent “at level zero” in the hallways, often at lunchtime or whenever a teacher demands; (4) being required to sit in an upright position all day, hands folded on the desk, feet planted firmly on the floor, and looking573 straight ahead; (5) being required to raise their hand in lock-elbow position in class or receive demerits if their arm is not straight; (6) being suspended for minor misbehaviors like laughing too much, inappropriate displays of affection such as hugging a friend, and most commonly for being “disrespectful.”

Letter from Reverend Willie Calhoun et al., Better Education Support Team, to Secretary Arne Duncan, U.S. Department of Education, Administrative Complaint Requesting Investigations into Three New Orleans Charter Schools Operated by Collegiate Academies—George Washington Carver Preparatory Academy, George Washington Carver Collegiate Academy and Sci Academy (Apr. 14, 2014) (citation omitted). See also Kari Harden, Civil Rights Complaints Are Filed Against Three N.O. Schools, Louisiana Weekly, April 21, 2014.

A recent national study of the discipline data thus far released on charter schools was consistent with these anecdotes. The study found that “in 2011-12, of the charter schools educating at least 50 students, 374 suspended at least 25% of all their student body. About one-fifth of these schools (68) had overall suspension rates of 50% or more.…[T]his means that more than half of all the enrolled students in 68 charter schools were suspended at least once. Perhaps most shocking is the fact that 235 charter schools suspended more than 50% of their enrolled students with disabilities.” Daniel J. Losen et al., The Civil Rights Project, Charter Schools, Civil Rights and School Discipline: A Comprehensive Review 6 (2016).

Second, the extent to which students are excluded from charters without due process is unclear, but some courts have made it relatively easy for charters to do so. For instance, in Scott B. v. Board of Trustees of Orange County High School of Arts, 158 Cal. Rptr. 3d 173 (Ct. App. Cal. 2013), a charter school student in California challenged his dismissal. As in charter schools in New Orleans and elsewhere, the student had accumulated too many demerits under the school code of conduct (although he appeared to have engaged in serious misconduct at the end that may have made his removal inevitable). He appealed his dismissal to the school board, but was denied a hearing. On that basis, he argued he was denied due process under a state statute. The appellate court rejected his claim, reasoning, that:

Dismissal from a charter school does not implicate [due process] concerns to the same degree as expulsion. Unlike public schools generally, “OCHSA is a school of choice. No student is required to attend.” When a student is dismissed from OCHSA, the student is free to immediately enroll in another school without the loss of classroom time. Thus, dismissal from OCHSA need not and should not delay Scott’s education. The May 16, 2011 letter informing Scott’s mother of his dismissal instructed her to immediately enroll Scott in another school. Scott’s transcripts from OCHSA were attached to the letter. The parties have not cited us to any statute requiring a new school be notified of a dismissal from a charter school.

Id. at 179. See also Preston C. Green III et al., Having It Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools, 63 Emory L.J. 303, 333-336 (2013) (analyzing whether charter schools are state actors and the effect of this issue on school discipline). Attorneys in New Orleans allege that some charter schools there have taken this rationale to the extreme,574 not bothering to offer even the most basic constitutionally required notice and opportunity to respond prior to suspension. Letter to Secretary Arne Duncan, supra. Another comprehensive case study of Philadelphia charter schools found that “too many of the codes are not well drafted, and too many follow models of punitive discipline that can be used to push out non-compliant or challenging students. Some codes grant almost complete discretion to school administrators to impose punitive discipline for any behavior the administrator deems problematic.” Kerrin Wolf, Mary Kate Kalinich, & Susan L. DeJarnatt, Charting School Discipline, 48 Urb. Law. 1, 3 (2016).

Should due process apply to suspension and exclusion from a charter school?

d. Exclusion from Athletic and Extracurricular Activities

The traditional approach to participation in extracurricular activities and athletics is that students do not have a property interest in them and thus due process does not apply. See, e.g., Todd v. Rush Cty. Schs., 133 F.3d 984, 986 (7th Cir. 1998); Palmer v. Merluzzi, 868 F.2d 90, 95-96 (3d Cir. 1989); Davenport v. Randolph Cty. Bd. of Educ., 730 F.2d 1395, 1397 (11th Cir. 1984); Herbert v. Ventetuolo, 638 F.2d 5 (1st Cir. 1981); Smith v. Chippewa Falls Area Unified Sch. Dist., 302 F. Supp. 2d 953, 957 (W.D. Wis. 2002) (collecting cases); Mazevski v. Horseheads Cent. Sch. Dist., 950 F. Supp. 69, 72 (W.D.N.Y. 1997). Several courts have reasoned that athletics and extracurricular activities are but a single component of education and that total exclusion from education is necessary to invoke due process. Several also reason that participation in athletics and extracurricular activities is, at best, a privilege, not a right. However, given the prominent role that sports play in our culture and the emphasis that many young people place on them, parents and students have continued to press their claims in court. Some have found inroads.

A few courts have placed significant weight in local school board policies or statutes governing athletics and find that students do have some protected interest in participation. These courts emphasize that extracurricular activities, albeit only a part of education, are an integral part of the total educational experience. These courts sometimes note that, in addition to a property interest, exclusion from athletics can implicate reputational interests. See, e.g., Butler v. Oak Creek-Franklin Sch. Dist., 116 F. Supp. 2d 1038 (E.D. Wis. 2000); Boyd v. Bd. of Directors of McGehee Sch. Dist. No. 17, 612 F. Supp. 86, 93 (E.D. Ark. 1985); Davis v. Cent. Dauphin Sch. Dist. Sch. Bd., 466 F. Supp. 1259, 1263 (M.D. Pa. 1979); Duffley v. N.H. Interscholastic Athletic Ass’n, 446 A.2d 462 (N.H. 1982).

e. Exclusion from School Buses

Exclusion from a school bus, on its face, seems like no more of a deprivation than exclusion from extracurricular activities. However, for some students, exclusion from a bus may make it impossible for them to attend school and575 thus can be the equivalent of a school suspension. Moreover, even if exclusion is not equivalent to a suspension, some state and local laws and policies may create an entitlement to ride the bus. Thus, deprivation necessarily triggers due process. By this reasoning, a hearing would seem necessary. Yet, misbehavior on a bus poses more safety concerns than most any other type of behavior in which a student might engage. On this basis, a pre-suspension hearing seems unnecessarily burdensome. See Rose v. Nashua Bd. of Educ., 506 F. Supp. 1366 (D.N.H. 1981) (given the potential danger, “we are not persuaded that the risk of inherent error is such as to mandate a pre-suspension hearing”); E.W. v. Wake Cty. Bd. of Educ., 2010 WL 1286215, at *8-*9 (E.D.N.C. Feb. 16, 2010) (finding no procedural violation in the immediate removal from school bus without a hearing).

f. Corporal Punishment

While most schools use one of the forgoing forms of punishment to discipline students, some continue to rely on corporal punishment. In fact, corporal punishment was once a primary method of discipline. The Court’s application of constitutional protections to suspensions suggested the Court might do the same with corporal punishment. Litigants reasoned that if the loss of a few days of school was sufficient to invoke due process protection, surely the imposition of physical pain and the loss of bodily integrity would warrant due process protection. Litigants also argued that corporal punishment was cruel and unusual punishment under the Eighth Amendment and ought to be banned as a general matter. The Court took up both questions in Ingraham v. Wright just two years after Goss v. Lopez. As you read Ingraham, consider the various ways in which corporal punishment is distinct from suspension, asking yourself which is the more serious punishment, which has the most significant educational consequences, whether either serves a pedagogical purpose, and whether any of these differences warrant a different constitutional approach.

Ingraham v. Wright

430 U.S. 651 (1977)

Mr. Justice Powell delivered the opinion of the Court.

This case presents questions concerning the use of corporal punishment in public schools: First, whether the paddling of students as a means of maintaining school discipline constitutes cruel and unusual punishment in violation of the Eighth Amendment; and, second, to the extent that paddling is constitutionally permissible, whether the Due Process Clause of the Fourteenth Amendment requires prior notice and an opportunity to be heard.

In addressing the scope of the Eighth Amendment’s prohibition on cruel and unusual punishment this Court has found it useful to refer to “[t]raditional common-law concepts,” and to the “attitude[s] which our society has576 traditionally taken.” So, too, in defining the requirements of procedural due process under the Fifth and Fourteenth Amendments, the Court has been attuned to what “has always been the law of the land” and to “traditional ideas of fair procedure.” We therefore begin by examining the way in which our traditions and our laws have responded to the use of corporal punishment in public schools.

The use of corporal punishment in this country as a means of disciplining school children dates back to the colonial period. Despite the general abandonment of corporal punishment as a means of punishing criminal offenders, the practice continues in the public education of school children in most parts of the country. [W]e can discern no trend toward its elimination.

[S]ince before the American Revolution[, the common law has provided that] [t]eachers may impose reasonable but not excessive force to discipline a child. The basic doctrine has not changed. The prevalent rule in this country today privileges such force as a teacher or administrator “reasonably believes to be necessary for (the child’s) proper control, training, or education.” Restatement (Second) of Torts §147(2) (1965). To the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.

Against this background of historical and contemporary approval of reasonable corporal punishment, we turn to the constitutional questions before us.

III

An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. Petitioners urge nonetheless that the prohibition should be extended to ban the paddling of schoolchildren, lest we afford greater protection to criminals than to schoolchildren. It would be anomalous, they say, if schoolchildren could be beaten without constitutional redress, while hardened criminals [cannot] under the Eighth Amendment. Whatever force this logic may have in other settings, we find it an inadequate basis for wrenching the Eighth Amendment from its historical context and extending it to public schools.

The prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration. The prisoner’s conviction entitles the State to classify him as a “criminal,” [deprive him of freedom and, at times, subject him to extreme treatment that borders on brutality. The Eighth Amendment serves as a check on the realistic prospect of “‘unnecessary and wanton infliction of pain’” during incarceration. In contrast, schoolchildren have “little need for the protection of the Eighth Amendment.”] The public school remains an open institution. [T]he child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to return home. Even while at school, the child brings with him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment.

The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth577 Amendment protects the prisoner. [T]hese safeguards are reinforced by the legal constraints of the common law. Public school teachers and administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary; any punishment going beyond the privilege may result in both civil and criminal liability. As long as the schools are open to public scrutiny, there is no reason to believe that the common-law constraints will not effectively remedy and deter excesses such as those alleged in this case.

We conclude that when public school teachers or administrators impose disciplinary corporal punishment, the Eighth Amendment is inapplicable. The pertinent constitutional question is whether the imposition is consonant with the requirements of due process.

Due process is required only when a decision of the State implicates [a life, liberty or property] interest within the protection of the Fourteenth Amendment. And “to determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.”

[Liberty interests] always have been thought to encompass freedom from bodily restraint and punishment. It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.

This constitutionally protected liberty interest is at stake in this case. There is, of course a de minimis level of imposition with which the Constitution is not concerned. But at least where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, we hold that Fourteenth Amendment liberty interests are implicated.

“[T]he question remains what process is due.” Were it not for the common-law privilege permitting teachers, to inflict reasonable corporal punishment on children in their care, and the availability of the traditional remedies for abuse, the case for requiring advance procedural safeguards would be strong indeed. But here we deal with a punishment paddling within that tradition, and the question is whether the common-law remedies are adequate to afford due process.

[A]

Under the common law, an invasion of personal security gave rise to a right to recover damages in a subsequent judicial proceeding. But the right of recovery was qualified by the concept of justification. Thus, there could be no recovery against a teacher who gave only “moderate correction” to a child. To the extent that the force used was reasonable in light of its purpose, it was not wrongful, but rather “justifiable or lawful.”

The concept that reasonable corporal punishment in school is justifiable continues to be recognized in the laws of most States. It represents “the balance struck by this country” between the child’s interest in personal security and the traditional view that some limited corporal punishment may be necessary. Under that longstanding accommodation of interests, there can be no578 deprivation of substantive rights as long as disciplinary corporal punishment is within the limits of the common-law privilege.

This is not to say that the child’s interest in procedural safeguards is insubstantial. The school disciplinary process is not “a totally accurate, unerring process, never mistaken and never unfair….” Goss v. Lopez, 419 U.S. 565, 579-580 (1975). In any deliberate infliction of corporal punishment on a child who is restrained for that purpose, there is some risk that the intrusion on the child’s liberty will be unjustified and therefore unlawful. In these circumstances the child has a strong interest in procedural safeguards that minimize the risk of wrongful punishment and provide for the resolution of disputed questions of justification.

We turn now to a consideration of the safeguards that are available under applicable Florida law.

[B]

Under Florida law the teacher and principal of the school decide in the first instance whether corporal punishment is reasonably necessary under the circumstances in order to discipline a child who has misbehaved. But they must exercise prudence and restraint. For Florida has preserved the traditional judicial proceedings for determining whether the punishment was justified. If the punishment inflicted is later found to have been excessive not reasonably believed at the time to be necessary for the child’s discipline or training the school authorities inflicting it may be held liable in damages to the child and, if malice is shown, they may be subject to criminal penalties.

In those cases where severe punishment is contemplated, the available civil and criminal sanctions for abuse considered in light of the openness of the school environment afford significant protection against unjustified corporal punishment. Teachers and school authorities are unlikely to inflict corporal punishment unnecessarily or excessively when a possible consequence of doing so is the institution of civil or criminal proceedings against them.

It still may be argued, of course, that the child’s liberty interest would be better protected if the common-law remedies were supplemented by the administrative safeguards of prior notice and a hearing. We have found frequently that some kind of prior hearing is necessary to guard against arbitrary impositions on interests protected by the Fourteenth Amendment. But where the State has preserved what “has always been the law of the land,” the case for administrative safeguards is significantly less compelling.

[C]

But even if the need for advance procedural safeguards were clear, the question would remain whether the incremental benefit could justify the cost. Acceptance of petitioners’ claims would work a transformation in the law governing corporal punishment in Florida and most other States. Given the impracticability of formulating a rule of procedural due process that varies with the severity of the particular imposition, the prior hearing petitioners seek would have to precede any paddling, however moderate or trivial.

579

Such a universal constitutional requirement would significantly burden the use of corporal punishment as a disciplinary measure. Hearings even informal hearings require time, personnel, and a diversion of attention from normal school pursuits. School authorities may well choose to abandon corporal punishment rather than incur the burdens of complying with the procedural requirements. Teachers, properly concerned with maintaining authority in the classroom, may well prefer to rely on other disciplinary measures which they may view as less effective rather than confront the possible disruption that prior notice and a hearing may entail.

“At some point the benefit of an additional safeguard to the individual affected…and to society in terms of increased assurance that the action is just, may be outweighed by the cost.” Mathews v. Eldridge, 424 U.S. at 348. We think that point has been reached in this case. In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal. Imposing additional administrative safeguards might reduce that risk marginally, but would also entail [significant burdens]. We conclude that the Due Process Clause does not require notice and a hearing prior to the imposition of corporal punishment in the public schools.

NOTES AND QUESTIONS

1. Does it make sense to say the Eighth Amendment protects criminals from cruel and unusual punishment but not students? How does the Court resolve any incongruence?

2. The point of the Eighth Amendment, in many instances, is to protect prisoners from certain excesses of the public. Do students need protection in some communities, or do benevolent societal approaches to children guard against societal excess?

3. Lower courts have held that substantive due process limits corporal punishment that is extremely severe. The standard in these cases is “‘whether the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.’” Garcia by Garcia v. Miera, 817 F.2d 650, 655 (10th Cir. 1987) (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)). To meet this standard, a “plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.” Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995). This standard by implication means that these courts do not believe less severe corporal punishment implicates substantive due process.

4. Both Goss and Ingraham find a liberty interest that triggers due process protections, but the Court in Ingraham concludes that corporal punishment, unlike suspension or expulsion, does not require a hearing prior to imposing the punishment. Does the Court persuasively justify this inconsistency? Is a580 hearing prior to corporal punishment any more burdensome than a hearing prior to suspension? Is the risk of error any less with corporal punishment than with suspension?

5. The Court reasons that private civil remedies are sufficient to afford students adequate due process and protection against unjustified corporal punishment. The Court may be correct as to some students, but are there other students for whom civil remedies provide no protection?

6. Today, most jurisdictions have abolished corporal punishment at either the state or local level. For a listing of those jurisdictions banning and allowing corporal punishment, see Global Initiative to End All Corporal Punishment of Children, Progress Towards Prohibiting All Corporal Punishment in North America 3-5 (2011). The practice, however, remains common in many other communities. In fact, every state in the Southeast permits corporal punishment, and many schools there frequently impose it. Alabama, Mississippi, and Texas all paddled more than thirty thousand students in the 2006-2007 school year. In Mississippi, 7.5 percent of the student population was paddled each year. Human Rights Watch, A Violent Education: Corporal Punishment of Children in U.S. Public Schools 42-43 (2008).

7. Putting aside the educational effects, opponents of corporal punishment cite to its serious negative psychological, emotional, and physical effects. Id. at 50-59. Students have reported bruising of the buttocks and injuries to their hands when they attempted to defend themselves. Id. at 50-52. Studies also find that corporal punishment can lead to depression, anxiety, hopelessness, and antisocial behavior. Id. at 54-55.

8. The decision in Ingraham was 5-4, with Justices White, Brennan, Marshall, and Stevens dissenting. Given the societal changes discussed in the previous notes, if the issue of corporal punishment returned to the Court today, would it reach the same conclusion?

4. Academic Discipline and Dismissal

Academic discipline and an academic judgment that a student has failed to meet an educational standard raise different issues than behavioral discipline. In particular, the assessment of whether a student has met an academic standard involves a qualitative judgment that is almost solely within the purview of educators. Moreover, academic discipline or judgments may not involve accusations and disputes over facts, but rather may come down to no more than a faculty member’s assessment of a student’s work. For these reasons, courts are very reluctant to intervene in, much less second-guess, academic decisions. Two Supreme Court cases dealing with students challenging academic decisions in higher education provide the defining standards in this area.

In Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978), the university dismissed a medical student for failing to meet its academic standards. During her final year of medical school, which consisted of clinical rotations, the school placed the student on academic probation based on her unsatisfactory performance the prior year. Like all other students, an581 external committee of doctors evaluated her work. The committee was dissatisfied with her performance and indicated that if she did not show progress she would not graduate. In an attempt to allow her to improve, the school permitted her to undergo further supervision and examination by practicing physicians. Only two of the seven physicians recommended her for graduation. Consequently, the original committee reaffirmed its position and ultimately recommended her dismissal, which the faculty and dean affirmed. She appealed to the provost, who also affirmed.

Consistent with Goss, the Court indicated that a student must be given “oral or written notice of the charges” and, if she denies them, an opportunity to respond. But the Court emphasized that due process is a flexible concept that varies based on context, and that academic matters differ significantly:

Academic evaluations of a student, in contrast to disciplinary determinations, bear little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full-hearing requirement. In Goss, the school’s decision to suspend the students rested on factual conclusions that the individual students had participated in demonstrations that had disrupted classes, attacked a police officer, or caused physical damage to school property. The requirement of a hearing, where the student could present his side of the factual issue, could under such circumstances “provide a meaningful hedge against erroneous action.” The decision to dismiss respondent, by comparison, rested on the academic judgment of school officials that she did not have the necessary clinical ability to perform adequately as a medical doctor and was making insufficient progress toward that goal. Such a judgment is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision. Like the decision of an individual professor as to the proper grade for a student in his course, the determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.

Bd. of Curators of Univ. of Mo., 435 U.S. at 89-90.

Taking these factors into account, the Court found that Horowitz had “been awarded at least as much due process as the Fourteenth Amendment requires.” She had been given extensive notice of her deficiencies through committee reviews and faculty interaction, and she had been given a chance to respond to and remedy their concerns. Id. at 84-85. The Court did not specify the exact process required in the future, but indicated that academic dismissal requires “far less stringent procedural requirements” than disciplinary dismissal, and refused to “formalize the academic dismissal process by requiring a hearing.” Id. at 86, 89.

In Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985), the Court took a similar approach regarding a student placed on leave and eventually dismissed from medical school for poor grades. The school gave him the opportunity to appeal his dismissal to a review board and explain his problems, which he did, but the board affirmed his dismissal. The Court wrote:

When judges are asked to review the substance of a genuinely academic decision…, they should show great respect for the faculty’s professional judgment. Plainly, they may not override [the faculty’s decision] unless it is such a substantial departure from accepted582 academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.

Ewing, 474 U.S. at 225. As one commentator writes, “[w]ithout a finding that an administrator or faculty member failed to exercise professional judgment or acted arbitrarily and capriciously, courts presume the administrators and faculty members have acted within the bounds of their academic freedom, and, therefore, will grant the decision-makers academic deference.” Joseph M. Flanders, Academic Student Dismissals at Public Institutions of Higher Education: When Is Academic Deference Not an Issue?, 34 J. Coll. & Univ. L. 19 (2007).

This precedent has relatively little import in elementary and secondary schools because, with the exception of certain competitive or specialized programs, they do not dismiss students for poor performance. Students have a right to attend school regardless of their performance. The relevance of Horowitz and Ewing is largely limited to issues of graduation, grade retention, grade promotion, and possibly access to particular courses. In these contexts, students face the same initial hurdle as Horowitz and Ewing. A refusal to promote a student, for instance, does not involve a denial of educational opportunity, and thus the property interest at stake is not obvious. Courts have generally indicated that students lack a property interest in promotion. Killion v. Burl, 860 F.2d 306 (8th Cir. 1988); Hartfield v. East Grand Rapids Pub. Schs., 960 F. Supp. 1259 (W.D. Mich. 1997); see also Sandlin v. Johnson, 643 F.2d 1027, 1029 (4th Cir. 1981) (refusing to review challenge to school decision to retain student); Obersteller for Obersteller v. Flour Bluff Indep. Sch. Dist., 874 F. Supp. 146 (S.D. Tex. 1994) (concluding that students also lack a property interest in the individual grades teachers award).

Courts have intimated, however, that there may be situations where a state statute or policy explicitly creates a property interest in specific courses, graduation, or promotion. As the Fifth Circuit wrote, “If, for example, plaintiff had alleged that she was gifted with extraordinary musical talents and that a Georgia statute or regulation required local school boards to provide special education for such gifted students, plaintiff might then be able to state a claim for relief on the basis that state officials had denied her an entitlement under state law.” Arundar v. DeKalb Cty. Sch. Dist., 620 F.2d 493, 494-495 (5th Cir. 1980). Graduation or receipt of a diploma may fall in this category as well. See, e.g., Debra P. v. Turlington, 644 F.2d 397, 403-444 (5th Cir. 1981).

Yet, even if a student has a property interest or the court assumes one for the purposes of analysis (which tends to be the case with promotion challenges), courts hold that a student is not entitled to a hearing of the sort involved with discipline. Rather, due process would be met by notice from the school that a student is not performing well and the opportunity to remedy one’s performance.

The primary check that due process places on academic decisions and discipline may be with regard to notice. In most cases, notice is irrelevant because students are well aware of the academic standards they must meet; their complaint is that they have actually met the standard or deserve another opportunity to meet it. But when students have not been apprised of the standards they must meet for major academic milestones or those standards change583 after students have begun their education, courts may be willing to intercede. Insofar as a property interest, such as a diploma, is affected, Debra P. held that schools must provide students advance notice of academic graduation standards and time to adjust to significant changes in the standards. Id. at 404 (holding that imposing a new graduation requirement on students in their final year of high school violated due process); see also id. (holding students accountable for material not taught violates the fundamental fairness required by due process).

PROBLEM

John is a senior at Hammond, a public high school. When he arrived at school on March 1, Mr. Smith, a teacher, believed he smelled alcohol on his breath and confronted John. John denied having alcohol in his system. Mr. Smith sent John to the principal’s office. The principal believed he smelled alcohol as well. John denied having drunk any and asserted the smell might be from his mouthwash or aftershave. The principal suspended John for five days.

The school’s discipline code states that for each day that a student is absent from a class due to suspension, his or her semester grade will be reduced by 2 percent. Per this rule, John’s grades were reduced by a total of 10 percent. This grade loss will make it impossible for John to graduate with honors, which he probably would have done otherwise. John appealed his suspension to the school board, which refused to offer him an in-person discussion but allowed him to submit a written appeal.

In the appeal, John argued (1) that he should not have been suspended without a further investigation into the allegations; and (2) that he missed no graded assignments during his five-day suspension and that the work he has submitted in his class warrants a higher grade than what he will now receive under the school’s policy. In a written letter, the board rejected the first argument, indicating the principal had a reasonable basis for suspending him. The board refused to entertain the second argument, indicating that the grade reduction policy applied without exception.

Did the school owe John any due process prior to or after suspending him and, if so, was the process afforded constitutionally adequate? Is his grade reduction a constitutionally permissible punishment? What if his grades were lowered to a point that he does not graduate? Would he be entitled to any particular due process in either instance?

B. SUBSTANTIVE DUE PROCESS

This chapter has, thus far, developed the law of procedural due process. Procedural due process addresses the issue of what process a school must follow before punishing a student. It protects the right to procedures designed to deliver notice and a chance to respond. Procedural due process, however, is neutral as to584 the final outcome so long as those processes are followed. Thus, procedural due process does not question whether a particular punishment is appropriate or whether a school has the authority to punish a student in a particular manner. Students seeking protection from overly harsh discipline must assert other claims.

Substantive due process offers some hedge against disciplinary outcomes. Certain punishments are simply so irrational in relation to the underlying infraction that substantive due process prohibits schools from subjecting a student to them, regardless of the amount of notice and opportunity the school afforded a student. Imagine, for instance, that a student violated a school rule against cursing, and the punishment was that the student must stand in the front of the classroom for five minutes while the rest of the class taunted the student with names and paper wads. Or imagine that the punishment was a one-year expulsion. Even if the district held a formal hearing and established beyond a shadow of a doubt that the student had cursed, the ten minutes of taunting would likely violate substantive due process because the punishment subjects the student to humiliation that bears no rational relationship to the underlying offense. A one-year suspension might violate due process for a different reason: its severity is wildly out of proportion to the underlying offense.

Hopefully, wild punishments of these sorts are unusual. Regardless, substantive due process has taken on added importance in recent years due to “zero-tolerance policies.” Pursuant to these policies, administrators automatically suspend and expel students for long periods of time for infractions such as alcohol and drug possession, weapons, and fighting. These policies, however, sometimes have broader applicability and extend to less serious behavior like disrespect or bringing so-called weapons and drugs like fingernail clippers and Tylenol to school. The following cases address whether examples of this sort raise substantive due process claims.

Seal v. Morgan

229 F.3d 567 (6th Cir. 2000)

Gilman, Circuit Judge.

Dustin Wayne Seal seeks monetary damages to compensate him for the Knox County Board of Education’s 1996 decision to expel him from high school after a friend’s knife was found in the glove compartment of Seal’s car. Seal, who denied any knowledge of the knife’s presence in the car while it was on school property, argues that the Board’s action was irrational and violated his right to due process of law.

I. Factual Background

[On October 30, a friend of Seal’s named Ray Pritchert started carrying around a hunting knife after his involvement in an out-of-school dispute. The next day, Seal, Pritchert, and David Richardson drove Seal’s car to Seal’s girlfriend’s house. Pritchert had the knife with him and placed it on the backseat585 floorboard. While Seal went into his girlfriend’s house, Richardson placed the knife in the car’s glove compartment.

The next day, Seal drove his girlfriend and Pritchert to their high school. Inside the school, the band director asked if Pritchert and Seal had been drinking. Pritchert said that they had not. A subsequent consensual search of the car by the vice-principal ensued. The search did not turn up alcohol, but it did turn up “two cigarettes in a crumpled pack in the back of the car, a bottle of amoxicillin pills (an antibiotic for which Seal had a prescription), and Pritchert’s knife in the glove compartment.” The vice-principal then took Seal to the office and directed him to write out a statement that explained why the knife was in the car. At the vice-principal’s behest, Seal wrote “‘Went to Roach’s office because he thought or had been told that we had a flask and had been drinking, so we went and Mr. Mashburn searched the car. He found a knife and 2 cigs. The knife was there because Ray’s ex-girlfriend’s boyfriend had been following us around with a few of his friends so we were a little uneasy.’” A disciplinary hearing before the high school’s principal followed. The principal took no action against Seal for the cigarettes or pills, but “she suspended Seal pending expulsion for possession of a knife.”

A second hearing took place before the school board’s hearing authority officer. The testimony of three witnesses at the hearing established that Seal knew Pritchert had the knife on his person on October 31, but that Seal did not know the knife was in his car the next day when the principal found it. Nonetheless, the hearing officer upheld the suspension pending expulsion by the board, reasoning that the knife was in his car while on school property and “[p]ossession of a weapon on school property is a violation of Knox County Policy.”

In a third hearing before the board, “Seal was represented by counsel, who forcefully argued that Seal had no idea that the knife was in [the] car.” In response to questioning by the board, Seal admitted he knew Pritchert had the knife on him the previous day, but stated he thought Pritchert had taken it with him and that he had never seen the knife in the car. A member of the board then stated the board had to send clear messages to students about weapons, and that students have to be responsible for what is in their cars. The board then voted unanimously to uphold the recommendation to expel Seal.]

Knox County Board of Education policy provides that students may not “possess, handle, transmit, use or attempt to use any dangerous weapon [including knives] in school buildings or on school grounds at any time” and that students who are found to have violated the policy “shall be subject to suspension and/or expulsion of not less than one…year.” The policy also provides that the Superintendent “shall have the authority to modify this suspension requirement on a case-by-case basis,” although Superintendent Morgan has argued that it is “not clear” whether he has the power to modify a suspension or expulsion once it has been finally approved by the Board.

Analysis

Due process has two components. The first [is] procedural due process (often summarized as “notice and an opportunity to be heard”). [Seal] does not really586 argue that the Board used unfair procedures before expelling him. Rather, his complaint is with the substantive result—the ultimate decision to expel him. His argument is thus one of substantive due process, the other component of due process. In essence, Seal argues that the Board’s ultimate decision was irrational in light of the facts uncovered by the procedures afforded him.

[T]he right to attend public school is not a fundamental right for the purposes of due process analysis. Government actions that do not affect fundamental rights or liberty interests and do not involve suspect classifications will be upheld if it they are rationally related to a legitimate state interest. In the context of school discipline, a substantive due process claim will succeed only in the “rare case” when there is “no ‘rational relationship between the punishment and the offense.’” Rosa R. v. Connelly, 889 F.2d 435, 439 (2d Cir. 1989).

That said, suspending or expelling a student for weapons possession, even if the student did not knowingly possess any weapon, would not be rationally related to any legitimate state interest. No student can use a weapon to injure another person, to disrupt school operations, or, for that matter, any other purpose if the student is totally unaware of its presence. Indeed, the entire concept of possession—in the sense of possession for which the state can legitimately prescribe and mete out punishment—ordinarily implies knowing or conscious possession.

We would have thought this principle so obvious that it would go without saying. The Board, however, devotes a great deal of the discussion in its briefs to arguing that “scienter” is not required by its “Zero Tolerance Policy,” and that the criminal law requirement that possession of a forbidden object be knowing or conscious possession is a “technicality” that should not be “transported into school suspension cases.” Frankly, we find it difficult to understand how one can argue that the requirement of conscious possession is a “technicality.”

We asked counsel at oral argument whether the Board was seriously arguing that it could expel a student for unconsciously possessing a dangerous weapon, posing a hypothetical example involving a high-school valedictorian who has a knife planted in his backpack without his knowledge by a vindictive student. The question was whether the valedictorian would still be subject to mandatory expulsion under the Board’s Zero Tolerance Policy, even if the school administrators and the Board members uniformly believed the valedictorian’s explanation that the knife had been planted. Counsel for the Board answered yes. After all, counsel argued, the Board’s policy requires “Zero Tolerance,” and the policy does not explicitly say that the student must know he is carrying a weapon. Only after the Board’s counsel sensed—correctly—that this answer was very difficult to accept did counsel backtrack, suggesting that perhaps an exception could be made for our unfortunate hypothetical valedictorian. We find it impossible to take this suggestion seriously, however, and not simply because counsel had just finished arguing the opposite. The suggestion is totally inconsistent with the Board’s position in this case, which is that the Zero Tolerance Policy uniformly requires expulsion whenever its terms are violated.

Contrary to the Board’s assertion, the criminal law requirement that possession of contraband must be conscious or knowing is neither arcane nor unsettled[, and the cases upon which the Board relies do not establish the principles587 for which it forwards them. At best, the cases establish] that the government would not need to prove that the defendant knew he was violating the law, or that the weapon possessed the attributes that make it a specific type of weapon—an assault weapon or machine gun, for example—that is likely the subject of heavy regulation or prohibition. But nothing in [the cases the Board cites] even remotely suggests that a defendant can be convicted for the unknowing possession of an item that is later revealed to be a statutory “assault weapon” or “machine gun.”

The Board is, of course, correct when it observes that this is not a criminal case, and that its decision to expel Seal is not vulnerable to a substantive due process attack unless it is irrational. We believe, however, that the Board’s Zero Tolerance Policy would surely be irrational if it subjects to punishment students who did not knowingly or consciously possess a weapon. The hypothetical case involving the planted knife is but one illustration of why.

A student who knowingly possesses a weapon and is caught with it can, of course, be lying when he or she claims not to have known of its existence. Simply because a student may lie about what he knew, however, does not mean that it is unnecessary to address the question of what he knew before meting out punishment. The Board, for its part, freely concedes that “the record does not reflect what the Board did or did not consider with respect to [Seal’s] knowledge,” [and the] Board’s attorney has insisted that Seal’s knowledge was completely irrelevant, and that the Board’s Zero Tolerance Policy required Seal’s expulsion regardless of whether he knew the knife was in his car. At the Board meeting during which the Board voted to expel Seal, Board Member Sam Anderson, who as far can be determined from the record is the only person having anything to do with the decision to expel Seal who even considered the question of what Seal did or did not know, suggested that it would send a “confusing message” to do anything besides expel Seal, regardless of whether Seal had any idea that the knife was in his car. Then again, he also apparently thought that Seal could have been expelled just as easily for having a prescription antibiotic in his car.

Based on the evidence of record, it appears that nothing that Seal could have said at any of [his] hearings would have made one bit of difference. Because there was no dispute that the knife was in Seal’s car when on school property, the Board insists that it was required under its Zero Tolerance Policy to expel Seal, whether or not he had any idea that the knife was in his car. We are prepared to take the Board at its word.

A school board can, of course, disbelieve the student’s explanation and conclude that the student knowingly violated school policies. If that occurs, due process would be satisfied as long as the procedures afforded the student were constitutionally adequate and the conclusion was rational. The Board argues that the district court “erred by substituting its own view of the facts for that of the Hearing Officer and the Board of Education.” Again, this begs the question—which nothing in the record answers—of what the views of the hearing officer and the Board were. Did the Board expel him because it disbelieved Seal’s explanation, did it expel him despite believing his explanation completely, or did it expel him without deciding the issue, in the belief that Seal’s knowledge was simply irrelevant to the decision? Of these possibilities,588 the first one would have been permissible if rationally supported by the record, but the other two would not have been.

It may be correct, as the Board argues, that as a matter of “state law, case law or its own rules,” the Board is not required to make formal findings of fact in expulsion cases. As a matter of federal constitutional law, however, the Board may not expel students from school arbitrarily or irrationally. To accept the Board’s argument would be to allow it to effectively insulate itself even from rational basis review, as long as the decision the Board reached might have been rational. What is at issue in the present case, however, is not whether the Board could have made a decision that would have been rationally related to a legitimate state purpose, but whether it actually did so.

The fact that we must defer to the Board’s rational decisions in school discipline cases does not mean that we must, or should, rationalize away its irrational decisions. And when it is not clear that the Board’s decision was rational, because it is impossible to conscientiously determine from the record what the Board’s actual decision was, then the Board, as well as other school boards with similar “Zero Tolerance” policies, should not be entitled to summary judgment in civil rights actions arising from their decisions to impose long-term suspensions and expulsions.

On the basis of the record presented, a reasonable trier of fact could conclude that Seal was expelled for a reason that would have to be considered irrational. We therefore conclude that the district court correctly denied the Board’s motion for summary judgment.

[W]e cannot accept the Board’s argument that because safety is important, and because it is often difficult to determine a student’s state of mind, that it need not make any attempt to ascertain whether a student accused of carrying a weapon knew that he was in possession of the weapon before expelling him.

The decision to expel a student from school is a weighty one, carrying with it serious consequences for the student. We understand full well that the decision not to expel a potentially dangerous student also carries very serious potential consequences for other students and teachers. Nevertheless, the Board may not absolve itself of its obligation, legal and moral, to determine whether students intentionally committed the acts for which their expulsions are sought by hiding behind a Zero Tolerance Policy that purports to make the students’ knowledge a non-issue. We are also not impressed by the Board’s argument that if it did not apply its Zero Tolerance Policy ruthlessly, and without regard for whether students accused of possessing a forbidden object knowingly possessed the object, this would send an inconsistent message to its students. Consistency is not a substitute for rationality.

NOTES AND QUESTIONS

1. What is the standard a student must meet to establish that his punishment violates substantive due process?

2. How are schools to ascertain the truth in situations such as this without exerting an enormous amount of effort? Given the limited tools at their disposal,589 can schools assess subjective intent any more reliably than courts? If not, is reading a scienter element into the disciplinary code problematic?

3. The weakness in the board’s argument, on appeal, is that it does not indicate it thought Seal was lying. Thus, the board implies it may have believed him. The court indicates that the board would have been free to discipline him had he asserted his innocence, but the board disbelieved him, so long as that conclusion was rational. Because there is no clear explanation of the thoughts of the principal and hearing officer on Seal’s credibility, it is possible that they did not fully believe his story. Should the court have been more deferential to the administration and board and given them the benefit of the doubt? If it had, what set of facts would be necessary to show a substantive due process violation?

4. Seal admits that he knew Pritchert had been carrying a knife and indicates he did not see the knife in the car on the day in question, but is Seal’s explanation of the facts sufficiently vague that maybe Seal did have reason to know that the knife was in the car? With whom should the burden of proof rest on such issues? Would there have been sufficient evidence to disbelieve him? On a set of facts analogous to Seal, the Tenth Circuit upheld a student’s suspension. The student denied knowledge of a weapon, but the court reasoned:

Contrary to the Butlers’ allegations and the district court’s decision, the School in this case did not suspend Mr. Butler for “unknowingly” bringing a knife onto school property. Although the hearing officer initially found only that Mr. Butler possessed weapons on school property in violation of school policy, the school board later concluded “[Mr.] Butler should have known, as the driver of the vehicle, that he was in possession of and transporting a weapon onto school grounds.” This was because “the knife was in plain view and readily identifiable as a knife to persons standing outside the vehicle looking in.” The board also concluded “[Mr.] Butler knew, or should have known that he was responsible for the vehicle he brought onto school property and the contents thereof.”

Butler v. Rio Rancho Pub. Schs. Bd. of Educ., 341 F.3d 1197, 1201 (10th Cir. 2003).

5. The board’s motivation here appears to be its desire to draw a line in the sand regarding drugs and weapons, and its fear that the board will have difficulty maintaining that line if it is flexible in any way or inquires into intent. Would such a motivation be well founded? Rather than asserting that intent is irrelevant, could a district instead indicate that it will make the reasonable presumption of intent based on possession? Would this policy be rational? Could the school have disciplined Seal under such a policy without violating substantive due process, notwithstanding an assertion of innocent intent? Could a school discipline a student under this policy when a student alleged that the weapon must have been intentionally planted on him?

6. Courts, including Seal, routinely emphasize that overturning school discipline based on substantive due process occurs only “in a rare case where there was no ‘rational relationship between the punishment and the offense.’” Brewer v. Austin Indep. Sch. Dist., 779 F.2d 260, 264 (5th Cir. 1985). Thus, many courts tend to diverge from Seal’s approach to zero-tolerance policies and the level of scrutiny it applied to the district. For instance, in Butler, the court refused to even address the question of whether intent is required because it590 found that intent existed based on possession. 341 F.3d at 1201. A Texas district court went even further and explicitly rejected the court’s rationale in Seal and held that intent is not a necessary element in prohibitions on possession. Bundick v. Bay City Indep. Sch. Dist., 140 F. Supp. 2d 735, 740 (S.D. Tex. 2001).

7. In Wood v. Strickland, 420 U.S. 308 (1975), the Supreme Court described the role of a federal court in assessing a substantive due process challenge as a limited one, writing:

It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking a basis in wisdom or compassion. Public high school students do have substantive and procedural rights while at school.…But §1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. The system of public education that has evolved in this Nation relies necessarily upon the discretion and judgment of school administrators and school board members and §1983 was not intended to be a vehicle for federal court correction of errors in the exercise of that discretion which do not rise to the level of violations of specific constitutional guarantees.

Id. at 326. Did the court in Seal cross this line?

The opinion in Seal addressed the unusual situation where the student may not have knowingly done anything wrong. Seal did not address the situation where a student has knowingly engaged in misconduct and the school seemingly overreacts with an extremely harsh punishment. While the deferential standard requiring a rational relationship between the infraction and punishment governs all substantive due process claims for discipline, it would seem to apply differently to claims of overly harsh discipline as opposed to claims of innocence. The claim of innocence might warrant close analysis of facts at times, whereas claims of overly harsh discipline might not.

Some courts, including those rejecting Seal, may miss or reject such a distinction, focusing instead on deference to schools and overstating the general principle that only punishments that “shock the conscience” violate substantive due process. As a general principle, suspending a student for one day is not so harsh that it would shock the conscience regardless of how minor the infraction a student committed. But if a student is suspended for a single day for something he or she clearly did not do, that punishment would bear absolutely no rational relationship to the student’s conduct or any legitimate interest of the school and, on that basis, ought to shock the conscience, even though the punishment itself is minor. Thus, the fact that a punishment might be minor should not end the analysis if the student asserts innocence or raises a factual anomaly related to innocence.

If, however, a student admits to violating a school policy and his claim is that the punishment is too harsh, substantive due process would limit only the most egregious instances of discipline. Various advocates and victims assert that zero-tolerance policies fall into this category when schools impose extreme punishments like expulsion for possession of so-called weapons like fingernail591 clippers or letter openers, or when schools impose automatic punishments with no consideration of the individual facts or student. The level at which one approaches the issue of zero tolerance is likely to dictate whether one deems punishments pursuant to zero tolerance as irrational. Taken from the perspective of an individual student and set of facts, some punishments pursuant to zero tolerance are irrationally severe, such as suspending a kindergarten student for making a threatening statement as part of his role-playing of cops and robbers during recess. See, e.g., S.G. ex rel. A.G. v. Sayreville Bd. of Educ., 333 F.3d 417 (3d Cir. 2003). Yet, from the perspective of the school, it is entirely rational to say all threats will be sanctioned with suspension and, if something amounts to a threat, there is no need for further inquiry. Of course, some would respond that the role-playing statements of a kindergartner should not be deemed real threats, but can one say that a school is legally irrational for treating them as such?

Relying on the Supreme Court’s statement in Wood that it is not the role of courts to substitute their judgments for the schools’ as to appropriate punishments, courts routinely have upheld extreme discipline for what was arguably innocent or relatively minor behavior. S.G., 333 F.3d at 425 (upholding three-day suspension of kindergarten student who stated “I’m going to shoot you” in the context of playing cops and robbers on the playground); Piekosz-Murphy v. Bd. of Educ. of Cmty. High Sch. Dist. No. 230, 858 F. Supp. 2d 952 (N.D. Ill. 2012) (upholding discipline of student who was present at an off-campus party where alcohol was present, but which he did not consume); Vann ex rel. Vann v. Stewart, 445 F. Supp. 2d 882 (E.D. Tenn. 2006) (upholding one-year suspension for possession of pocket knife). When students have received particularly harsh punishment in comparison to other students who previously engaged in similar conduct, courts have still upheld the punishment, finding that the current punishment is rationally related to the infraction regardless of how other students have been treated. Smith ex rel. Smith v. Severn, 129 F.3d 419, 429 (7th Cir. 1997); Vann, 445 F. Supp. 2d at 882. The only exception would be if the student could show intentional discrimination. Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556 (6th Cir. 2011).

Ratner v. Loudoun County Public Schools

16 F. App’x 140 (4th Cir. 2001)

Per Curium.

In October 1999, Benjamin Ratner, age 13, was in the eighth grade at Blue Ridge Middle School in Loudoun County, Virginia. On October 8, 1999, a schoolmate told Ratner that she had been suicidal the previous evening and had contemplated killing herself by slitting her wrists. She also told Ratner that she inadvertently had brought a knife to school in her binder that morning. Ratner had known her for two years, was aware of her previous suicide attempts, and feared for her safety. Thus, he took the binder from her and put it in his locker. He did not tell school authorities about the knife, but he intended to tell592 both his and her parents after school. By lunchtime that day, Roberta Griffith, Assistant Principal at the school, had learned that the girl might have given a knife to Ratner.

Eventually, Fanny Kellogg, Dean at the school, summoned Ratner to her office and asked him about the knife. Ratner admitted that he had it, and at Kellogg’s direction he went alone to his locker, retrieved the binder, and gave it to Kellogg. Kellogg acknowledged that she believed Ratner acted in what he saw as the girl’s best interest and that at no time did Ratner pose a threat to harm anyone with the knife.

Nonetheless, Ratner was then suspended by Griffith for 10 days for possessing a knife on school grounds in violation of school board policy. [Shortly thereafter, the school district held a hearing and, on the recommendation of the superintendent, suspended Ratner for the remainder of the school term.] Ratner filed suit[, asserting] that his suspension under what is called a zero tolerance policy² amounted to violations of Ratner’s Fourteenth Amendment rights to due process and equal protection and his Eighth Amendment right to be free from cruel and unusual punishment.

The district court dismissed Ratner’s complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). In its memorandum opinion, the district court concluded Ratner’s claim was, in essence, a claim of due process violations. The district court also concluded, correctly, that the school officials gave Ratner constitutionally sufficient, even if imperfect, process in the various notices and hearings it accorded him, and we agree.

However harsh the result in this case, the federal courts are not properly called upon to judge the wisdom of a zero tolerance policy of the sort alleged to be in place at Blue Ridge Middle School or of its application to Ratner. Instead, our inquiry here is limited to whether Ratner’s complaint alleges sufficient facts which if proved would show that the implementation of the school’s policy in this case failed to comport with the United States Constitution. We conclude that the facts alleged in this case do not so demonstrate.

Hamilton, Senior Circuit Judge, concurring:

I write separately to express my compassion for Ratner, his family, and common sense. Each is the victim of good intentions run amuck. Ratner’s complaint alleges that school suspensions for possession of a weapon on Loudoun County school property are imposed automatically, pursuant to a zero-tolerance policy that precludes consideration of the facts and circumstances of a particular student’s conduct in determining a violation of stated policy and the resulting student punishment. There is no doubt that this zero-tolerance/automatic593 suspension policy, and others like it adopted by school officials throughout our nation, were adopted in large response to the tragic school shootings that have plagued our nation’s schools over the past several years. Also, no doubt exists that in adopting these zero-tolerance/automatic suspension policies, school officials had the noble intention of protecting the health and safety of our nation’s school children and those adults charged with the profound responsibility of educating them. However, as the oft repeated old English maxim recognizes, “the road to hell is paved with good intentions.” The panic over school violence and the intent to stop it has caused school officials to jettison the common sense idea that a person’s punishment should fit his crime in favor of a single harsh punishment, namely, mandatory school suspension. Such a policy has stripped away judgment and discretion on the part of those administering it; refuting the well-established precept that judgment is the better part of wisdom.

Here, a young man, Ratner, took a binder containing a knife from a suicidal fellow student in an effort to save her life. He put the binder in his locker without even opening it. Indeed, at all times, Ratner never saw the knife. Further, the facts do not offer even the hint of a suggestion that Ratner ever intended to personally possess the knife or harm anyone with it. In fact, the first school official on the scene reported that at no time did Ratner intend to harm anyone with the knife. Yet, based on the school’s zero-tolerance/automatic suspension policy, Ratner was suspended from school for nearly four months.

School officials should, without doubt, punish a student for knowingly and intentionally bringing a dangerous weapon on school property. But the question raised by the facts of Ratner’s case is one of degree and the law must be flexible enough so that school officials may intrude upon the right to a free appropriate public education only in the most justifiable circumstances. Under a facts/circumstances-sensitive examination of this case, Ratner’s nearly four-month suspension from middle school is not justifiable. Indeed, it is a calculated overkill when the punishment is considered in light of Ratner’s good-faith intentions and his, at best, if at all, technical violation of the school’s policy. Suffice it to say that the degree of Ratner’s violation of school policy does not correlate with the degree of his punishment. Certainly, the oft repeated maxim, “there is no justice without mercy” has been defiled by the results obtained here. But alas, as the opinion for the court explains, this is not a federal constitutional problem.

NOTES AND QUESTIONS

1. While there is some ambiguity regarding whether Ratner explicitly alleged a substantive due process violation or only a procedural due process, the Fourth Circuit intuited a substantive due process challenge to his suspension, but rejected his claim on the basis that it could not “judge the wisdom of a zero tolerance policy” or “its application” to Ratner. Can Ratner be reconciled with Seal? If not, which approach is correct? As a matter of lower court precedent, the notes following Seal would indicate that Seal, rather than Ratner, is the outlier. For more on the argument that the Ratner approach misreads the594 prohibition in Wood v. Strickland on second-guessing school districts, see Derek W. Black, Ending Zero Tolerance: The Crisis of Absolute School Discipline 102-108 (NYU Press 2016).

2. Do the Loudon Schools have a legitimate interest in suspending Ratner for the remainder of the school term? Is his exclusion rationally related to achieving that interest? In other words, to what extent does his exclusion further a legitimate goal of the school?

3. If Ratner’s punishment does not fit the crime, is not justifiable, and amounts to calculated overkill—as Judge Hamilton states—why does Judge Hamilton conclude that it is not prohibited by the Constitution? Should the Constitution be this deferential in requiring schools to justify suspensions and expulsions or did the Fourth Circuit abdicate its judicial role in this case? If courts do not engage in any more substantive scrutiny than this, does the Constitution actually protect against irrational and unjustified exclusions?

4. Two paragraphs of procedure and a few citations were deleted in the above printed version of the case, but otherwise, this reprint represents the entirety of the analysis devoted to the issues. The district court provided a similarly sparse explanation of its rationale for dismissing the case. One scholar argues that a major flaw in cases like Ratner is that courts do not give the constitutional issues serious consideration and falsely assume, without actually going through the analysis, that school exclusions pass substantive due process scrutiny. Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 Minn. L. Rev. 823, 860-864 (2015). He further argues that “certain processes, principles, and considerations are so inherent in due process that schools cannot legitimately levy punishment without them, even if doing so might have some administrative benefit for schools.” Id. at 829. He cites a long line of general due process cases outside the context of schools that have required the consideration of particular facts so as to ensure a fair and individualized approach to punishment. Based on that precedent, he argues that discipline policies that ignore significant distinctions between students—such as their intent, culpability, and the harm their behavior poses—is irrational. Id. at 866-900. For instance, it would be irrational to punish a student who accidentally brought a cough drop to school as harshly as one who sold marijuana at school. Do you agree that discipline policies that ignore these factors are irrational or fail to further a legitimate government interest?

Eric Blumenson & Eva S. Nilsen, One Strike and You’re Out? Constitutional Constraints on Zero Tolerance in Public Education

81 Wash. U. L.Q. 65 (2003)

Expulsions and suspensions were once imposed only for either the most serious offenses or repeat offenders. The new zero tolerance policy imposes expulsion or suspension for a wide range of other conduct that previously would have been dealt with through after-school detentions, withdrawal of privileges, counseling, mediation, and other methods. By making removal from school a mandatory sanction in all these cases, zero tolerance renders595 school personnel helpless to craft that response most suited to the situation and also narrows the disciplinary inquiry to the single issue of whether the student committed the infraction. Off the table are such significant factors as why the student committed the offense, whether it was intentional, whether the student has a prior history of infractions or achievements, and the student’s personal circumstances.

The initial impetus for mandatory expulsions and suspensions came from Congress, which in 1994 enacted the Gun Free Schools Act. This law conditions federal aid on a state’s adoption of two zero tolerance regulations, one mandating a one-year expulsion for students who bring certain kinds of weapons to school and another requiring referral of these students to law enforcement. Soon after passage, all fifty states enacted the required zero tolerance policies, but a large majority of states chose to go further by requiring the expulsion of students who commit drug, alcohol, and other school infractions, as well. According to one study, by 1998, 79% of public schools had zero tolerance policies for tobacco, 87% for alcohol, and 88% for drugs. Such policies can produce highly disproportionate and destructive punishments, such as the two-year expulsion applied to a first offender caught with marijuana in a Milwaukee school. Some states also require suspension or expulsion for infractions committed off school grounds.

The consequence of these mandatory sanctions is that, although school crime rates have remained roughly stable for the last two decades, the use of suspension has almost doubled. More than 3.1 million students were suspended (about half for a substantial period) and 87,000 students expelled during the 1998 school year. Whether these students continued to receive some form of education depended on geography: twenty-six states require school districts to provide alternative schools for these students, but eighteen states give individual school districts discretion to determine whether to provide alternative education, and many of these offer no educational program at all.

Zero tolerance regimes typically ignore the most basic of distinctions among offenses: how dangerous was it? Minor incidents that would have been handled quickly and informally by school officials are now the subject of disciplinary hearings and even reports to the district attorney for prosecution. In many schools, zero tolerance sanctions are applied equally against weapons and alcohol offenses, drug sale and possession offenses, and assault and disorderly offenses. They also may apply against such infractions as tardiness, disrespect, and defiance, which, in addition to increasing the numbers, allow bias to creep into the decision to discipline. It is estimated that the vast majority of expulsions and suspensions are imposed for noncriminal, nonviolent minor offenses, such as smoking cigarettes and truancy. The rest range from minor to trivial, and according to media reports include such infractions as possession of such “weapons” as key chains, staplers, and geometry compasses; and such “drugs” as lemon drops, asthma inhalers, Midol, and Advil.

The Rationale and Reality of Zero Tolerance Regimes

Zero tolerance in public education constitutes a form of triage: it attempts to protect and better educate one group of children by identifying and excising596 another. The latter children may be viewed as “superpredators,” delinquents, or merely potential troublemakers, but in any event they are regarded as more dangerous, more hopeless, and more dispensible than their counterparts were a decade ago. The new disciplinary approach therefore largely eschews educational and rehabilitative measures for these students. They are instead to be handled and defused through the incapacitative and deterrent effects of suspensions, expulsions, and referrals to the criminal system.

We have noted that today’s students are in fact no more violent than in prior decades, and there is good reason to doubt that they are any more incorrigible than their predecessors. Even so, weapons, drug abuse, and violence to any degree threaten both the safety and well-being of students, and disruptions in class undermine the learning process. The salient policy question about zero tolerance is whether it provides an effective method for dealing with these problems.

A. Deterrence

In an ideal world, zero tolerance policies would constitute so powerful and efficient a deterrent that almost all students would be well behaved, and very few would suffer sanctions or the destructive consequences of educational deprivation. Of course, this has not happened; the number of suspensions and expulsions has skyrocketed.

It is more difficult to say whether zero tolerance policies are serving as a deterrent to some degree by making rules violations too costly for some students. Government statistics report that juvenile violent crime did fall in the 1990s, but this reduction occurred both on and off school grounds. In high schools, the number of students threatened or injured with a weapon on school property remained constant from 1993 to 1999, during which time zero tolerance policies were widely adopted in the wake of the 1994 federal zero tolerance weapons requirement.

What these figures prove is unclear because of our inability to control for extraneous factors. Those experts who have attempted to isolate the impact of zero tolerance discipline have found little evidence that these sanctions are substantially influencing student behavior. One reason may be that, although the expulsion sanction is severe, the likelihood of its application to any individual violator is quite low: except for highly visible infractions like fighting in class, few violators are caught. Two scholars who have written widely on the issue report that schools substantially relying on zero tolerance policies “continue to be less safe than schools that implement fewer components of zero tolerance.”

However, a conception of deterrence that encompasses only the “scare” factor associated with tough sanctions may be too crude to capture the full impact zero tolerance could have on student behavior over a longer period. Arguably, zero tolerance might also exert a slower and more subtle influence by incrementally increasing the reputational and social costs (and not simply the punitive consequences) of troublemaking.

The hope is that by drawing a clear line, giving no quarter to disruption or disrespect, and setting high expectations, schools will instill the obedient and597 cooperative values of a former era. It is undoubtedly true that how a public school responds to infractions by its students conveys messages that influence student norms and culture. We believe, however, that the messages are more varied and complicated. Consider mandatory expulsions for drug use as an example. We cannot assume, as [zero tolerance] theorists do, that official intolerance of disorder necessarily engenders peer intolerance, so that using drugs becomes repugnant rather than “cool”—as thirty years of a zero tolerance drug policy at the national level, and before that prohibition, have demonstrated. A zero tolerance policy for all drug violations is more likely to have disparate and varied effects: for some students, zero tolerance will help mitigate peer pressure by affording them an acceptable excuse to wield against classmates offering drugs, while others may be driven to identify with an “outlaw” culture. Some students may hear the literal, and potentially dangerous, message that hard and soft drugs are indistinguishable. Others who know they are not will learn to dismiss or ridicule authority. Most students do know that sharing a Tylenol is not as culpable as sharing a joint, which in turn is not as dangerous as selling cocaine. Should we really believe that these students will develop a new-found respect for teachers who treat all three with the same zero tolerance expulsion? Teenagers, after all, are exceptionally quick to discern and resent unfair treatment from adults, and research suggests that undifferentiated sanctions in public schools are promoting alienation and even disobedience among many students.

Finally, some students will hear a message about law and justice, one that corrodes rather than strengthens one of our essential cultural legacies. “One size fits all” punishments dispense with the elementary inquiries into blameworthiness or harm that are inseparable from our traditional understandings of fairness, liberty, and equality. Such sanctions teach a lesson that the Supreme Court famously warned against long ago: “That [schools] are educating the young for citizenship,” the Court explained, “is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

B. Incapacitation

To the degree that deterrence fails, zero tolerance expulsions are supposed to provide schools with a second line of defense—a form of incapacitation. Removing troublesome students from the classroom should reduce disruptions and enhance safety in that school, assuming all other factors remain unchanged. Yet the statistics to date do not show significant success on this front either. Were such a strategy working, the initial jump in zero tolerance removals would fall off as troublemakers were expelled. Instead, schools are expelling and suspending ever larger numbers of students.

Whatever the prospects of identifying and removing disruptive students, it is important to understand how severely limited the incapacitation claim is: it considers short-term consequences in the classroom only, ignoring highly negative effects both outside school and in school over the longer term. But598 such costs must be counted in order to assess both the impact of zero tolerance removals and the relative merits of alternative disciplinary approaches that do not withdraw educational services. Suspended or expelled students do not simply disappear, of course. They embark on an inauspicious trajectory that is more likely to endanger themselves and others when compared with students who continue to attend their schools. This trajectory begins by dissolving the bonds with the teachers and counselors who would be most able to provide help to troubled students. It leads to greatly increased chances of permanently dropping out of school and of joblessness. Another correlation exists between the lack of secondary education and criminal behavior, a correlation aggravated by expulsions that produce unsupervised free time for many who can least handle it, bleak future prospects, and feelings of unjust treatment. One study concludes that, absent alternative education for removed students, “school personnel may simply be dumping problem students out on the streets, only to find them later causing increased violence and disruption in the community.…[W]e face serious questions about the long-term negative effects of one of the cornerstones of zero tolerance, school exclusion.”

NOTES AND QUESTIONS

1. Does the decrease in criminal activity at the same time that school suspensions and expulsions have increased suggest that schools are doing something right or that they are overreacting to student misbehavior? Is it indicative of irrationality? Should these facts give courts pause in their deference to school administrators, or do schools remain in the best position to exercise judgment?

2. The authors indicate that some schools have extended zero-tolerance policies to minor misbehaviors such as disobedience and defined Tylenol as a drug, with the rationale being that an absolutist approach will result in deterrence and students self-policing and strictly adhering to the rules. The article indicates, however, that students have not stopped engaging in inappropriate behavior in school. Are we punishing students for otherwise normal adolescent, albeit inappropriate, behavior? Is there anything unfair or irrational in severely punishing students for behavior we should expect? On the other hand, schools should model good behavior, and infractions cannot be ignored. What options do schools have that neither overreact to nor ignore inappropriate behavior?

3. What messages do schools intend to send to students with their zero-tolerance policies? Is it possible that they are teaching students the wrong lesson?

4. Scholars and advocates frequently point out that, even if harsh discipline policies are rational in the sense that they punish inappropriate behavior and protect innocent students from that misbehavior, harsh discipline policies have serious consequences for the students who are punished and, as a side effect, schools and society as a whole. First, due to the perceived unfairness of zero-tolerance policies, students who are subject to zero tolerance frequently feel599 alienated from their schools and become more likely to use drugs, resort to violence, and engage in other harmful behaviors. In this respect, zero tolerance replicates the disease it seeks to cure. Zachary W. Best, Derailing the Schoolhouse-to-Jailhouse Track: Title VI and a New Approach to Disparate Impact Analysis in Public Education, 99 Geo. L.J. 1671, 1679 (2011). Second, zero tolerance negatively affects educational outcomes. Students are subject to more and longer suspensions, which deprive them of educational opportunity, decrease achievement scores, and increase the likelihood of a student dropping out by fivefold. Id. at 1679-1680. Third, suspension and expulsion make students more likely to become involved in the criminal justice system both in the short and long term. Id. at 1680.

5. Schools may have no choice other than to exclude some students, but if a student is not a serious threat to others or a significant disruption to the learning environment, what is the justification for excluding the student from school, given what we know to be the serious risks to the excluded student?

C. RACIAL DISPARITIES

Zero-tolerance and harsh disciplinary policies have a particularly negative impact on minority students. A study by the Advancement Project reported that in 2006 to 2007 every state in the country suspended black students at a higher rate than white students. “The worst disparities were in Wisconsin, where Black students were over seven times more likely to be suspended than their White peers. [In] Minnesota, Nebraska, Iowa, and Pennsylvania,…Black students were between four-and-a-half and six times as likely to be suspended as White students.” Advancement Project, Test, Punish, and Push Out: How “Zero Tolerance” and High-Stakes Testing Funnel Youth into the School-to-Prison Pipeline 21 (2010). Disparities were not as high for Latino students, but still existed in 40 states. Id.

The seminal study of discriminatory discipline practices is Russell J. Skiba et al., The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment (2000). Skiba writes: “Studies of school suspension have consistently documented disproportionality by socioeconomic status. Students who receive free school lunch are at increased risk for school suspension. [A prior study] also found that students whose fathers did not have a full-time job were significantly more likely to be suspended than students whose fathers were employed full-time.” Id. at 1. Skiba’s study took into account socioeconomic differences between racial groups and found “that significant racial disparities in school discipline remain even after controlling for socioeconomic status.” Id. at 15. In fact, “an index of socioeconomic status had virtually no effect when used as a covariate in a test of racial differences in office referrals and suspensions. Indeed, disciplinary disproportionality by socioeconomic status appear[ed] to be a somewhat less robust finding than gender or racial disparity.” Id. Interestingly, “race disparities in school suspension” did not principally stem600 from differential decisions made by principals at the office, but from “differences in the rate of initial referral to the office for black and white students.” Id. A higher rate of misbehavior by African Americans, however, was unlikely to be the explanation for a higher rate of referral.

[T]he disproportionate discipline for boys appears to be an appropriate response to higher rates of disruptive behavior among boys. There is no such support for a similar racial hypothesis. Neither these nor any previous results we are aware of provide any evidence that racial discrepancies in school punishment can be accounted for by disproportionate rates of misbehavior. Rather African American students are referred for and subjected to more severe consequences for less serious and more subjective reasons. Thus, of the three dimensions tested in this study—gender, race, and socioeconomic status—only disparities due to race persist regardless of level of analysis. Absent support for any plausible alternative explanation, these data lend support to the conclusion that racial disproportionality in school discipline, originating at the classroom level, is an indicator of systematic racial discrimination.

Id. at 16. Skiba has continued to document extensive racial disparities in discipline in various subsequent studies. See, e.g., Russell Skiba et al., Race Is Not Neutral: A National Investigation of African American and Latino Disproportionality in School Discipline, 40 Sch. Psychol. Rev. 85 (2011); Russell Skiba et al., African American Disproportionality in School Discipline: The Divide Between Best Evidence and Legal Remedy, 54 N.Y.L. Sch. L. Rev. 1071 (2010); Russell Skiba et al., Unproven Links: Can Poverty Explain Ethnic Disproportionality in Special Education, 39 J. Special Educ. 130 (2005). Do you agree that these disparities are indicative of discrimination? Is there any other explanation? If not, how should the education system respond?

Based on studies like these, along with the growing social science consensus that harsh discipline does not make schools safer but instead undermines educational outcomes, the U.S. Departments of Education and Justice issued joint policy guidance in 2016. The guidance was designed to reduce racial discrimination and inequality in discipline, but also to prompt districts to adopt more effective approaches to student misbehavior.

U.S. Department of Justice, Civil Rights Division & U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline

Jan. 8, 2014

[D]isparities in student discipline rates in a school or district may be caused by a range of factors. However, research suggests that substantial racial disparities are not explained by more frequent or more serious misbehavior by students of color. Although statistical and quantitative data would not end an inquiry under Title IV or Title VI, significant and unexplained racial disparities in student discipline give rise to concerns that schools may be engaging in racial discrimination that violates the Federal civil rights laws. For instance, statistical601 evidence may indicate that groups of students have been subjected to different treatment or that a school policy or practice may have an adverse discriminatory impact. Indeed, the Departments’ investigations, which consider quantitative data as part of a wide array of evidence, have revealed racial discrimination in the administration of student discipline. For example, in our investigations we have found cases where African-American students were disciplined more harshly and more frequently because of their race than similarly situated white students. In short, racial discrimination in school discipline is a real problem.

The data also show that an increasing number of students are losing important instructional time due to exclusionary discipline. The increasing use of disciplinary sanctions such as in-school and out-of-school suspensions, expulsions, or referrals to law enforcement authorities creates the potential for significant, negative educational and long-term outcomes, and can contribute to what has been termed the “school to prison pipeline.” Studies have suggested a correlation between exclusionary discipline policies and practices and an array of serious educational, economic, and social problems, including school avoidance and diminished educational engagement; decreased academic achievement; increased behavior problems; increased likelihood of dropping out; substance abuse; and involvement with juvenile justice systems.

Additionally, fair and equitable discipline policies are an important component of creating an environment where all students feel safe and welcome. Schools are safer when all students feel comfortable and are engaged in the school community, and when teachers and administrators have the tools and training to prevent and address conflicts and challenges as they arise. Equipping school officials with an array of tools to support positive student behavior—thereby providing a range of options to prevent and address misconduct—will both promote safety and avoid the use of discipline policies that are discriminatory or inappropriate. The goals of equity and school safety are thus complementary, and together help ensure a safe school free of discrimination.

A. Legal Framework

When schools respond to student misconduct, Titles IV and VI [of the Civil Rights Act of 1964³] require that the school’s response be undertaken in a racially nondiscriminatory manner. These statutes cover school officials and everyone school officials exercise some control over, whether through contract or other arrangement, including school resource officers. Schools cannot divest themselves of responsibility for the nondiscriminatory administration of school safety measures and student discipline by relying on school resource officers, school district police officers, contract or private security companies, security guards or other contractors, or law enforcement personnel.

Titles IV and VI protect students over the entire course of the disciplinary process, from behavior management in the classroom, to referral to an authority602 outside the classroom because of misconduct to resolution of the discipline incident. [T]he initial referral of a student to the principal’s office for misconduct is a decision point that can raise concerns, to the extent that it entails the subjective exercise of unguided discretion in which racial biases or stereotypes may be manifested. If a school refers students for discipline because of their race, the school has engaged in discriminatory conduct regardless of whether the student referred has engaged in misbehavior. And even if the referrals do not ultimately lead to the imposition of disciplinary sanctions, the referrals alone result in reduced classroom time and academic instruction for the referred student. Furthermore, if a sanction from a discriminatory referral becomes part of the student’s school record, it could potentially enhance the penalty for subsequent misconduct and follow the student throughout the student’s academic career.

The administration of student discipline can result in unlawful discrimination based on race in two ways: first, if a student is subjected to different treatment based on the student’s race, and second, if a policy is neutral on its face—meaning that the policy itself does not mention race—and is administered in an evenhanded manner but has a disparate impact, i.e., a disproportionate and unjustified effect on students of a particular race. Under both inquiries, statistical analysis regarding the impact of discipline policies and practices on particular groups of students is an important indicator of potential violations. In all cases, however, the Departments will investigate all relevant circumstances, such as the facts surrounding a student’s actions and the discipline imposed.

1. Different Treatment

Both Title IV and Title VI prohibit schools from intentionally disciplining students differently based on race. The clearest case of intentional discrimination would be a policy that was discriminatory on its face: one that included explicit language requiring that students of one race be disciplined differently from students of another race, or that only students of a particular race be subject to disciplinary action.

More commonly, however, intentional discrimination occurs when a school has a discipline policy that is neutral on its face (meaning the language of the policy does not explicitly differentiate between students based on their race), but the school administers the policy in a discriminatory manner or when a school permits the ad hoc and discriminatory discipline of students in areas that its policy does not fully address.

Such intentional discrimination in the administration of student discipline can take many forms. The typical example is when similarly situated students of different races are disciplined differently for the same offense. Students are similarly situated when they are comparable, even if not identical, in relevant respects. For example, assume a group of Asian-American and Native-American students, none of whom had ever engaged in or previously been disciplined for misconduct, got into a fight, and the school conducted an investigation. If the school could not determine how the fight began and had no information603 demonstrating that students behaved differently during the fight, e.g., one group used weapons, then the school’s decision to discipline the Asian-American students more harshly than the Native-American students would raise an inference of intentional discrimination.

Selective enforcement of a facially neutral policy against students of one race is also prohibited intentional discrimination. This can occur, for example, when a school official elects to overlook a violation of a policy committed by a student who is a member of one racial group, while strictly enforcing the policy against a student who is a member of another racial group. It can occur at the classroom level as well. The Departments often receive complaints from parents that a teacher only refers students of a particular race outside of the classroom for discipline, even though students of other races in that classroom commit the same infractions. Where this is true, there has been selective enforcement, even if an administrator issues the same consequence for all students referred for discipline.

Intentional discrimination also occurs when a school adopts a facially neutral policy with the intent to target students of a particular race for invidious reasons. This is so even if the school punishes students of other races under the policy. For example, if school officials believed that students of a particular race were likely to wear a particular style of clothing, and then, as a means of penalizing students of that race (as opposed to as a means of advancing a legitimate school objective), adopted a policy that made wearing that style of clothing a violation of the dress code, the policy would constitute unlawful intentional discrimination.

Lastly, intentional discrimination could be proven even without the existence of a similarly situated student if the Departments found that teachers or administrators were acting based on racially discriminatory motives. For example, if a school official uttered a racial slur when disciplining a student, this could suggest racial animus, supporting a finding that the official intended to discriminate based on a particular student’s race.

Whether the Departments find that a school has engaged in intentional discrimination will be based on the facts and circumstances surrounding the particular discipline incident. Evidence of racially discriminatory intent can be either direct or circumstantial. Direct evidence might include remarks, testimony, or admissions by school officials revealing racially discriminatory motives. Circumstantial evidence is evidence that allows the Departments to infer discriminatory intent from the facts of the investigation as a whole, or from the totality of the circumstances.

Absent direct evidence of intentional discrimination based on race, the Departments examine the circumstantial evidence to evaluate whether discrimination has occurred. The Departments typically ask the following questions to determine whether a school intentionally discriminated in the administration of student discipline:

Did the school limit or deny educational services, benefits, or opportunities to a student or group of students of a particular race by treating them differently from a similarly situated student or group of students 604
of another race in the disciplinary process? If no, then the Departments would not find sufficient evidence to determine that the school has engaged in intentional discrimination. If the students are similarly situated and the school has treated them differently, then:
Can the school articulate a legitimate, nondiscriminatory reason for the different treatment? If not, the Departments could find that the school has intentionally discriminated on the basis of race. If yes, then:
Is the reason articulated a pretext for discrimination? Some of the circumstances where the Departments may find that the school’s stated reason is a pretext—in other words, not the true reason for the school’s action—are: the asserted reason does not explain the school’s actions; witnesses contradict the school’s stated reason for the disparity, exposing such reason as false; students of other races have received different sanctions for similar instances of misbehavior; or the sanctions imposed do not conform to the school’s permitted discipline sanctions in its written discipline policy. If the nondiscriminatory reason offered by the school is found to be pretextual, the Departments would find that the school had engaged in intentional discrimination.

In evaluating claims under this analysis, the Departments may also consider other circumstantial evidence to determine whether there was discriminatory intent underlying a school’s administration of discipline. Such circumstantial evidence may include, but is not limited to, whether the impact of a disciplinary policy or practice weighs more heavily on students of a particular race; whether there is a history of discriminatory conduct toward members of a student’s race; the administrative history behind a disciplinary policy or decision; and whether there had been inconsistent application of disciplinary policies and practices to students of different racial backgrounds.

2. Disparate Impact

Schools also violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race. The resulting discriminatory effect is commonly referred to as “disparate impact.”

In determining whether a facially neutral policy has an unlawful disparate impact on the basis of race, the Departments will engage in the following three-part inquiry.

Has the discipline policy resulted in an adverse impact on students of a particular race as compared with students of other races? For example, depending on the facts of a particular case, an adverse impact may include, but is not limited to, instances where students of a particular race, as compared to students of other races, are disproportionately: sanctioned at higher rates; disciplined for specific offenses; subjected to 605
longer sanctions or more severe penalties; removed from the regular school setting to an alternative school setting; or excluded from one or more educational programs or activities. If there were no adverse impact, then, under this inquiry, the Departments would not find sufficient evidence to determine that the school had engaged in discrimination. If there were an adverse impact, then:
Is the discipline policy necessary to meet an important educational goal? In conducting the second step of this inquiry, the Departments will consider both the importance of the goal that the school articulates and the tightness of the fit between the stated goal and the means employed to achieve it. If the policy is not necessary to meet an important educational goal, then the Departments would find that the school had engaged in discrimination. If the policy is necessary to meet an important educational goal, then the Departments would ask:
Are there comparably effective alternative policies or practices that would meet the school’s stated educational goal with less of a burden or adverse impact on the disproportionately affected racial group, or is the school’s proffered justification a pretext for discrimination? If the answer is yes to either question, then the Departments would find that the school had engaged in discrimination. If no, then the Departments would likely not find sufficient evidence to determine that the school had engaged in discrimination.

Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense—such as being tardy to class, being in possession of a cellular phone, being found insubordinate, acting out, or not wearing the proper school uniform; corporal punishment policies that allow schools to paddle, spank, or otherwise physically punish students; and discipline policies that prevent youth returning from involvement in the justice system from reenrolling in school. Additionally, policies that impose out-of-school suspensions or expulsions for truancy also raise concerns because a school would likely have difficulty demonstrating that excluding a student from attending school in response to the student’s efforts to avoid school was necessary to meet an important educational goal.

B. Information the Departments Consider

During an investigation, the Departments will examine facts and information related to a school’s discipline approach. The following is a non-exhaustive list of the types of information the Departments have examined when investigating the possibility of discriminatory discipline: written policies (such as student codes of conduct, parent handbooks, and teacher manuals) and unwritten disciplinary practices (such as exercises of discretion by teachers and school administrators); data indicating the number of referrals to administrators charged with implementing student discipline and/or to law enforcement606 authorities; discipline incident reports; copies of student discipline records and discipline referral forms; school discipline data disaggregated by subgroup, offense, other relevant factors (such as the time of incident, place of incident, whether more than one student was involved in an incident, the students’ prior disciplinary infractions, the person(s) who referred a student for discipline); and interviews with students, parents, administrators, teachers, counselors, school resource officers and other law enforcement officers, relevant contractors, and support staff. The Departments also will review and analyze information provided by schools [through federal data collection] and other relevant data.

The Departments will look carefully at, among other things, a school’s definitions of misconduct to ensure they are clear and nondiscriminatory, the extent to which disciplinary criteria and referrals are made for offenses that are subjectively defined (e.g., disrespect or insubordination), and whether there are safeguards to ensure that discretion is exercised in a nondiscriminatory manner. In addition to establishing a system for monitoring all disciplinary referrals, the school should have a system in place to ensure that staff who have the authority to refer students for discipline are properly trained to administer student discipline in a nondiscriminatory manner. Schools should thus take steps to monitor and evaluate the impact of disciplinary practices to detect patterns that bear further investigation.

NOTES

1. The Office for Civil Rights began actively enforcing this policy in 2013 and 2014, and has continued since. For a discussion of various enforcement actions and consent agreements, see Derek W. Black, Office for Civil Rights Remains Committed to New Discipline Policy, Has Chance to Go Even Further, Educ. Law Prof Blog (Oct. 16, 2014).

2. The Departments have required districts to adopt various remedies for violations, but the most important may be those requiring a change in approach to discipline itself. The Departments suggest:

developing and implementing strategies for teaching, including the use of appropriate supports and interventions, which encourage and reinforce positive student behaviors and utilize exclusionary discipline as a last resort;
providing training for school personnel on revised discipline policies and classroom management techniques;
providing school-based supports for struggling students whose behavior repeatedly disrupts their education and/or the education of other students

U.S. Department of Justice, Civil Rights Division & U.S. Department of Education, Office for Civil Rights, Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline (Jan. 8, 2014). This shift in approach to607 discipline is heavily supported in the social science literature and typically referred to as “positive behavioral supports.” For a detailed discussion of the literature, see Jason P. Nance, Dismantling the School-to-Prison Pipeline: Tools for Change, Ariz. St. L.J. 313 (2016) and Katayoon Majd, Students of the Mass Incarceration Nation, 54 How. L.J. 343 (2011).

PROBLEM

A school district’s discipline code allows for a one-day suspension of all students who commit the offense of “acting in a threatening manner.” Statistical data demonstrate that under this provision of the code, a school in the district suspends African American students disproportionately relative to their enrollment at the school. During the investigation, the Departments find that the discipline code provision lacks a clear definition of the prohibited conduct, and that the school has suspended African American students under the provision for a broad range of actions, including congregating in groups in the hallways, talking too loudly, or talking back when admonished by the teacher. Further, the evidence indicates that white students engaging in comparable conduct are more likely to be charged with lower-level violations of the discipline code, such as “no hall pass” and “classroom disruption.” These offenses do not lead to suspension and are more likely to result in after-school detention.

Apply the legal framework from the Dear Colleague Letter and determine whether the district can defend its policy and practices.

PROBLEM

You are a member of the Hamilton County School Board. The board adopted a zero-tolerance policy that calls for long-term suspension or expulsion in response to various infractions: (1) any acts of violence or physical aggression on school campus, (2) possession of any drugs or alcohol, (3) attending school with unprescribed drugs or alcohol in one’s system, (4) possession of weapons, (5) defiance on more than three occasions in a semester, and (6) off-campus behavior that results in criminal charges. Since adopting this policy, the number of expulsions and long-term suspensions have quadrupled and student achievement has decreased. Moreover, the number of expulsions and suspensions shows no sign of decreasing soon. These problems are particularly true for African American students. You are now having second thoughts about the policy. Does the law, as you understand it, require that you make any changes? Regardless, would you propose a different policy to replace the old one? Pay close attention to whether you would eliminate zero tolerance completely or maintain a zero-tolerance policy, but simply narrow its application. What, if any, steps could you take to reduce racial disparities?

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D. DUE PROCESS WHEN EDUCATION IS A CONSTITUTIONAL RIGHT

When the Supreme Court decided Goss v. Lopez, almost no state courts had held that students have a constitutional right to education under their state constitutions. Consequently, the Court in Goss analyzed education as merely a statutory property right. As such, a school need not articulate any significant governmental interest to exclude a student from school nor follow procedures beyond basic notice and an opportunity to respond. The numerous state supreme court opinions discussed in Chapter 3 that recognize students’ constitutional or fundamental right to an equal or adequate education potentially change this analysis. Infringements of federal fundamental rights are subject to strict scrutiny and require relatively significant governmental interests and careful procedures. But federal courts have yet to take state developments in the constitutional right to education into account in analyzing school discipline.

State courts have begun to address the question, but have afforded it varying degrees of attention and reached conflicting results. Some state courts indicate that the constitutional right to education has little effect on the disciplinary process, as the right to education is subject to students’ good behavior. Others have suggested that the existence of a fundamental or constitutional right demands strict scrutiny. Concerned that strict scrutiny might impose significant burdens on schools that legitimately need to exclude and discipline students with efficiency, the North Carolina Supreme Court took an intermediate route. As you read the next case, consider which of the three positions is the most legally defensible and which makes the most sense as a practical educational matter.

Also, note that the precise issue in the case is not what process the school affords a student, but whether the school must provide a student an alternative education once the school excludes the student. The rise of expulsions and suspensions makes the provision of alternative education a crucial right. Additional process may be of little import to the vast number of students who are excluded for uncontested misbehavior, but some form of continuing education can be the difference between the possibility of continued educational progress and starting down a path that leads to premature termination of education and entry into the criminal justice system.

King v. Beaufort County Board of Education

364 N.C. 368 (2010)

Martin, Justice.

This case presents the question of whether the Beaufort County School Board violated state law by denying Viktoria King (plaintiff) access to alternative education during her long-term suspension from school. After considering longstanding precedent affording school officials discretion in administering student609 disciplinary codes and recent cases recognizing a state constitutional right to a sound basic education, we hold that defendants must articulate a reason for denying plaintiff access to alternative education during her long-term suspension.

[As punishment for her involvement in a fight,] the Beaufort County Superintendent, Jeffrey Moss, adopted the principal’s recommendation and suspended plaintiff for the remainder of the school year without offering her alternative education. A panel of central office administrators upheld the decision.

Plaintiff alleges that defendants’ denial of alternative education during her long-term suspension is a violation of the state constitution. Before this Court plaintiff repeatedly emphasized the importance of requiring defendants to articulate a reason for denying her access to alternative education. While the state constitution requires defendants to provide a reason for refusing alternative education to plaintiff, we decline plaintiff’s invitation to create a constitutional right to alternative education for students who violate lawful school rules.

The General Assembly has enacted a comprehensive statutory scheme specifying the powers and duties of local school boards and school officials in connection with school discipline and alternative education. The statute vests school officials with the authority to issue long-term suspensions to students “who willfully violate[] the policies of conduct established by the local board of education.” [Other statutory sections create a “comprehensive scheme” that] grants long-term suspended students a statutory right to receive alternative education when feasible and appropriate.

In acknowledging a statutory right to alternative education, we stress that a fundamental right to alternative education does not exist under the state constitution. Nevertheless, insofar as the General Assembly has provided a statutory right to alternative education, a suspended student excluded from alternative education has a state constitutional right to know the reason for her exclusion. This right arises from the equal access provisions of the North Carolina Constitution. Because exclusion from alternative education potentially infringes on a student’s state constitutional right to equal educational access, school administrators must articulate a reason when they exclude a long-term suspended student from alternative education.

Having observed that our holding does not recognize a state constitutional right to alternative education, we consider the standard of review to be applied when a suspended student is denied access to alternative education. The present case requires us to harmonize the rational basis test employed in school discipline cases with the strict scrutiny analysis that formed a part of this Court’s constitutional holding in school funding cases. The tension between these differing standards of review must be resolved in a manner that (1) protects student access to educational opportunities, while (2) preserving the discretion of school officials to maintain safe and orderly schools.

North Carolina courts have historically accorded school administrators great deference in the exercise of their disciplinary authority. For instance, in Coggins ex rel. Coggins v. Board of Education, we noted that “the local board is the final authority so long as it acts in good faith and refrains from adopting610 regulations which are clearly arbitrary or unreasonable.”[In In re Jackson, the Court of Appeals correctly] observed that “a student may be constitutionally suspended or expelled for misconduct whenever the conduct is of a type the school may legitimately prohibit.”

Despite this well-established precedent, plaintiff urges this Court to adopt strict scrutiny for school disciplinary determinations. Most courts, however, review school disciplinary decisions using a more deferential standard. See, e.g., Tucson Pub. Sch. v. Green, 495 P.2d 861, 864 (1972); Satan Fraternity v. Bd. of Pub. Instruction, 22 So.2d 892, 893 (1945); Wilson v. Hinsdale Elementary Sch. Dist., 810 N.E.2d 637, 642 (2004); S. Gibson Sch. Bd. v. Sollman, 768 N.E.2d 437, 442 (Ind. 2002); Davis v. Hillsdale Cmty. Sch. Dist., 573 N.W.2d 77, 79 (1997) (per curiam); Busch v. Omaha Pub. Sch. Dist., 623 N.W.2d 672, 677 (2001); Hamilton v. Unionville-Chadds Ford Sch. Dist., 714 A.2d 1012, 1014 (1998). Even the Supreme Court of Wyoming, one of the few state courts to apply strict scrutiny in this context, acknowledges that “school districts are in the best position to judge the student’s actions in light of all the surrounding circumstances and tailor the appropriate punishment to fit the unique circumstances of each student’s situation.” In re R.M., 102 P.3d 868, 876 (Wyo. 2004). Put simply, “the special context of public schools requires a more lenient approach to reviewing the decisions of school officials.” At the same time, we have held strict scrutiny applicable to some educational issues. In Leandro v. State, this Court applied strict scrutiny to the question of whether the state had failed to provide students in low-income districts “a sufficient education to meet the minimal standard for a constitutionally adequate education.” Within the context of school funding, the Court concluded that [the North Carolina Constitution guarantees] “every child of this state an opportunity to receive a sound basic education in our public schools.” In contrast to our school discipline cases, Leandro placed the burden on the state “to establish that [its] actions denying this fundamental right [were] ‘necessary to promote a compelling governmental interest.’”

But Leandro does not immunize students from the consequences of their own misconduct. A critical distinction exists between the state uniformly denying students in low-income districts access to a sound basic education and the state offering all students a sound basic education but temporarily removing students who engage in misconduct that disrupts the sound basic education of their peers. As we have said, “The right to attend school and claim the benefits afforded by the public school system is the right to attend subject to all lawful rules and regulations prescribed for the government thereof.” School administrators undeniably possess both freedom and flexibility to punish students who disrupt the educational process or endanger other students. See Goss v. Lopez, 419 U.S. 565, 580 (1975).

Notwithstanding the long history of judicial deference to the disciplinary determinations of school administrators, plaintiff argues that her Leandro right to a sound basic education requires us to apply strict scrutiny to defendants’ decision to deny her alternative education. [A]doption of strict scrutiny to review disciplinary determinations would necessarily require judges to routinely substitute their own views for those of school administrators [and mandate alternative education under circumstances that the General Assembly611 has been unwilling to]. We agree with amicus that adoption of strict scrutiny for disciplinary and alternative education decisions by school officials would render “long-term suspension practically unusable as a form of student discipline and flood[] the courts with litigation regarding a myriad of discretionary administrative decisions.” In each case in which a school administrator determines that an alternative education placement is inappropriate, the school must prove its disciplinary decision is narrowly tailored to effectuate a compelling interest.

Because of the unworkable burdens it imposes on school administrators, applying strict scrutiny to long-term suspensions jeopardizes the safety of the greater school community and impedes the educational progress of the suspended student’s peers. In contrast to regulatory statutes and criminal codes enacted by legislative bodies, school disciplinary rules [need not be] drafted to withstand strict scrutiny in courts of law. See Bethel v. Fraser, 478 U.S. 675 (1986) (“Given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions.” (emphasis added)). Consequently, application of strict scrutiny to the student disciplinary process operates to the detriment of our public school communities.

Rational basis review, on the other hand, does not adequately protect student access to educational opportunities or guard against arbitrary decisions or inadvertent errors by school officials. Under this standard, “[i]t is not necessary for courts to determine the actual goal or purpose of the government action at issue; instead, any conceivable legitimate purpose is sufficient.” As applied to alternative education determinations, rational basis review undoubtedly upholds administrative decisions even in the absence of a proffered reason, as plaintiff experienced in the present case. But this Court’s previous recognition of state constitutional rights to equal educational access and a sound basic education compels more exacting review.

Accordingly, we hold that alternative education decisions for students who receive long-term suspensions are reviewed under the state constitutional standard of intermediate scrutiny. Under the state intermediate scrutiny standard, school administrators must articulate an important or significant reason for denying students access to alternative education. In the school disciplinary context, intermediate scrutiny strikes a practical balance between protecting student access to educational opportunities and empowering school officials to maintain safe and orderly schools.

State law requires local boards of education to establish at least one alternative learning program and create strategies for assigning long-term suspended students to it when feasible and appropriate. Since the General Assembly has chosen to grant this statutory right to long-term suspended students, school administrators cannot arbitrarily deny access without violating the state constitution.

School administrators are not required to provide alternative education to every suspended student, especially those students who forfeit this statutory right through their own misbehavior. Because the safety and educational interests of all students receiving alternative education must be protected, students612 who exhibit violent behavior, threaten staff or other students, substantially disrupt the learning process, or otherwise engage in serious misconduct may be denied access. For these students, school officials will have little or no difficulty articulating an important or significant reason for denying access to alternative education under the state standard of intermediate review.

In the present case, defendants did not articulate any reason for denying plaintiff access to alternative education during her semester-long suspension. The record indicates only that plaintiff participated in “a fight involving numerous students.” Because the people of North Carolina “have a right to the privilege of education,” N.C. Const. art. I, §15, the requirement that school administrators articulate an important or significant reason for denying educational services is not unduly burdensome.

Even though defendants may have concluded plaintiff’s violent behavior made her a threat to students and staff if she were placed in an alternative learning facility, it is not the role of this Court to speculate why plaintiff was denied alternative education. Nevertheless, when defendants suspended plaintiff for misbehavior they did not have the benefit of this Court’s harmonization of our decision in Leandro with the standards of review applicable to school discipline cases. Accordingly, on remand, defendants should be afforded the opportunity to explain why they denied plaintiff access to alternative education.

Reversed and remanded.

Justice Timmons-Goodson, concurring in part and dissenting in part.

I disagree with the majority’s application of intermediate scrutiny. The North Carolina Constitution and precedent from this Court firmly establish for every child of this state a constitutionally-rooted fundamental right to the opportunity for a sound basic education. Accordingly, a purported violation of this right, including the cessation of all state-funded educational services, should be strictly scrutinized.

And until today, the Court has never parsed this right to give it varying levels of protection depending on the context. Thirty years ago, this Court concluded that “equal access to participation in our public school system is a fundamental right, guaranteed by our state constitution and protected by considerations of procedural due process.” We reaffirmed this right in Leandro v. State, declaring that the North Carolina Constitution confers upon “every child…a fundamental right to a sound basic education which would prepare the child to participate fully in society as it existed in his or her lifetime.”

None of [our precedent] contains any suggestion that the fundamental right to the opportunity for a sound basic education is limited to any particular context. As a result, I would hold this right to protect students from a complete termination of state-funded educational services during long-term suspensions. To hold otherwise would allow schools to grant every child an equal opportunity to enter school and then deprive them of all public education when it is less than necessary to do so.

No participant in this appeal suggests that local boards of education lack a compelling interest in ensuring safe and orderly schools. No one disputes that this compelling governmental interest operates in every long-term suspension613 or expulsion for fighting, other violent behavior, or any conduct that threatens the orderly administration of the schools. Accordingly, strict scrutiny only requires school administrators to consider whether a long-term suspension or expulsion without some alternative educational option is necessary to achieve safety and order. If denial of an alternative education program is not necessary to further a compelling state interest, then such action is not narrowly tailored and must be reversed.

In other words, if it is possible to provide a student who has infringed a school rule with some form of education without jeopardizing the safety of others, then that opportunity should be provided. If a safe and orderly school environment can be maintained without barring a student from every single state-funded educational service, then such a barrier should not be erected.

NOTES AND QUESTIONS

1. The court begins with the premise that an alternative education is a statutory right rather than a constitutional one. Is this statutory response a constitutional necessity given that, in the absence of an alternative education, an expulsion would be an absolute deprivation of a North Carolina student’s constitutional right to a sound basic education? What level of scrutiny would the absolute deprivation of a sound basic education require? As the court points out, the challenge is harmonizing the rational basis review generally applied to discipline with the stricter scrutiny applied in school finance cases.

2. The court attempts to harmonize these conflicting standards by indicating that a student’s right to attend school is subject to their compliance with “all lawful rules and regulations.” Where the school has substantial evidence of a rule violation, this principle justifies the school removing students from school under some circumstances. Does this resolve the issue of what misbehavior justifies removing a student? Does this resolve the question of what process a student would be due before exclusion from school?

3. The court implies that limiting schools’ ability to impose long-term suspensions and expulsion is a bad thing. Given that schools are adjudicating students’ constitutional rights rather than the statutory right at stake in Goss, is the court’s assumption correct? Likewise, the North Carolina Supreme Court cites to the U.S. Supreme Court for the propositions that (1) schools require flexibility in discipline and (2) student codes of conduct need not be overly detailed. While such propositions are obviously true as a matter of federal law—where education is not a fundamental right—are those propositions equally relevant to state questions? If education is a fundamental right under state law, does that eliminate the rationale for flexibility and leniency in school discipline or must the fundamental right still be tailored to the practicalities of running a school?

4. After arguing that strict scrutiny places too great of a burden on schools, the court argues that rational basis review offers students too little protection. Its solution is intermediate scrutiny. Is that the correct solution? What must a614 school do as a practical matter to meet intermediate scrutiny in expelling a student?

The theory that a constitutional right to education changes discipline and expulsion standards has been met with mixed results in other states. In Massachusetts and Nebraska, the highest courts reasoned that, although the state has a constitutional obligation to provide students with an education, the obligation is limited or conditional in certain respects. In Massachusetts, the court wrote that, while the state has an obligation to deliver an adequate education, “a student’s interest in a public education can be forfeited by violating school rules.” Doe v. Superintendent of Sch., 653 N.E.2d 1088, 1096 (Mass. 1995). Consistent with this premise, both states’ highest courts applied only rational basis review to student expulsions and the failure to provide alternative education. Id.; Kolesnick ex rel. Shaw v. Omaha Pub. Sch. Dist., 558 N.W.2d 807, 813 (Neb. 1997).

Courts in three states besides North Carolina, however, have found that the state’s duty to offer an adequate education places limits on expulsions and requires the provision of alternative education. Mississippi applied intermediate scrutiny to an expulsion and found that, even where expulsion was justified, a student was entitled to alternative education. Board of Trs. v. T.H., III, 681 So. 2d 110, 115-117 (Miss. 1996). West Virginia’s Supreme Court went even further, recognizing that education was a fundamental right. Phillip Leon M. v. Greenbrier Cty. Bd. of Educ., 484 S.E.2d 909, 914, 916 n.12 (W. Va. 1996). Thus, deprivations of that right through discipline are subject to strict scrutiny. The court found that removing an extremely dangerous student from school might be a compelling interest, but narrowly tailoring prevents the state from depriving a student of all education and requires the provision of an alternative education. Id. at 915-916. Relying on the constitutional right to education, a lower court adopted a similar approach in New Jersey. State ex rel. G.S., 749 A.2d 902, 908 (N.J. Super. Ct. Ch. Div. 2000).

Wyoming’s Supreme Court applied strict scrutiny to an expulsion, but inexplicably found that expulsion was a narrowly tailored response to meet the state’s goal of safety in schools. In re R.M., 102 P.3d 868, 876 (Wyo. 2004). Thus, it did not require the provision of alternative education. Scholars, however, have sharply criticized the rationale of courts that have refused to take school exclusions more seriously in light of school finance precedent. See, e.g., Robyn K. Bitner, Exiled from Education: Plyler v. Doe’s Impact on the Constitutionality of Long-Term Suspensions and Expulsions, 101 Va. L. Rev. 763 (2015); Amy P. Meek, School Discipline “As Part of the Teaching Process”: Alternative and Compensatory Education Required by the State’s Interest in Keeping Children in School, 28 Yale L. & Pol’y Rev. 155, 179-180 (2009).

Regardless, one point entirely unaddressed by prior cases is the connection between school quality and disciplinary practices. Empirical evidence indicates that schools struggle to consistently deliver equal and adequate education opportunities without also ensuring effective discipline policy. In other words, in some schools, ineffective discipline policies may be a primary cause of the615 inadequate and unequal education that students in those schools receive. In fact, recent studies have connected a large portion of the racial achievement gap to the fact that minority students disproportionately attend schools with dysfunctional disciplinary environments. Richard Arum & Melissa Velez, Class and Racial Differences in U.S. School Disciplinary Environments, in Improving Learning Environments: School Discipline and Student Achievement in Comparative Perspective 298-302 (Richard Arum & Melissa Velez eds., 2012); Edward W. Morris & Brea L. Perry, The Punishment Gap: School Suspension and Racial Disparities in Achievement, 63 Soc. Probs. 68 (2016). In disorderly or dysfunctional environments, all students in the school are harmed—both the misbehaving student and the innocent bystanders. Just as plaintiffs have demonstrated that inadequate teaching and funding are violations of the education rights and duties covered in Chapter 3, so too might a plaintiff argue that some discipline policies and practices deprive students of the constitutionally required education. For more on the connection between school quality and discipline and the constitutional implications, see Derek W. Black, Reforming School Discipline, 111 Nw. U. L. Rev. (forthcoming 2016).

QUESTIONS

1. What effect should students’ misbehavior have on their right to education? Should the forfeiture of education require some significant level of misbehavior, or should schools have discretion as to this question? The original debates surrounding the various education articles generally focused on higher level and aspirational issues rather than detailed questions regarding the forfeiture of educational rights. See generally Inst. for Educ. Equity & Opportunity, Education in the 50 States: A Deskbook of the History of State Constitutions and Laws About Education (2009). What, if any, constitutional or legal rationale would support the forfeiture of a constitutional right, and would adjudication of that forfeiture allow for localized discretion or require a formalized process? Are there analogies in other areas of law that might provide guidance as to when one might forfeit constitutional or other significant rights?

2. If disciplinary deprivations of education are subject to strict scrutiny, what justifications amount to compelling interests, and what are the least restrictive means for accomplishing the deprivations?

3. Which argument is the most persuasive: that school exclusion triggers strict scrutiny or that a dysfunctional discipline environment deprives students of their constitutional right to education? What are the strengths and weaknesses of each?

PROBLEM

Your state supreme court has just held, in its first school finance case, that education is a fundamental right. Your state currently has no statutory framework that prescribes any particular process for short- or long-term suspensions,616 nor does it specify any type of misconduct that can or cannot lead to suspension or expulsion or whether alternative education should be provided in the event of punishment. You are a state legislator and are considering proposing legislation that speaks to each of these issues. What processes would you mandate that local school districts follow? What, if any, behavior would you require that they punish and how? Would you require the provision of alternative education for expelled students? With each of your decisions, indicate whether Goss v. Lopez requires it. If you grant any protection beyond Goss, explain your rationale.

E. SEARCH AND SEIZURE

School administrators often learn of or confirm student misbehavior by searching students’ personal items or body. Sometimes, a search may be necessary for a school to have a sufficient basis to discipline a student. These searches raise two fundamental questions. First, are searches by school administrators subject to the Fourth Amendment’s warrant and reasonableness requirements? Second, if school searches are subject to the Fourth Amendment, do they require a level of suspicion equivalent to the criminal justice context? The Supreme Court answered these questions in New Jersey v. T.L.O. in 1985. The case, however, left open several other important questions, including whether the standard applicable to school administrators changes when they turn over the evidence to police officers, whether the standard normally applicable to police officers changes when they are acting at the behest of school administrators, and whether routine searches of the entire school or groups of students implicate a different analysis than searches of individual students based on individualized suspicion. These second generation questions are taken up in the cases and materials that follow T.L.O.

1. Suspicion-Based Searches

New Jersey v. T.L.O.

469 U.S. 325 (1985)

Justice White delivered the opinion of the Court.

[This case calls on the Court to consider “the proper standard for assessing the legality of searches conducted by public school officials.”]

On March 7, 1980, a teacher at Piscataway High School in Middlesex County, N.J., discovered two girls smoking in a lavatory. One of the two girls was the respondent T.L.O. Because smoking in the lavatory was a violation of a school rule, the teacher took the two girls to the Principal’s office, where they617 met with Assistant Vice Principal Theodore Choplick. [There,] T.L.O.’s companion admitted that she had violated the rule. T.L.O., however, denied that she had been smoking in the lavatory and claimed that she did not smoke at all.

Mr. Choplick asked T.L.O. to come into his private office and demanded to see her purse. Opening the purse, he found a pack of cigarettes, which he removed from the purse and held before T.L.O. as he accused her of having lied to him. As he reached into the purse for the cigarettes, Mr. Choplick also noticed a package of cigarette rolling papers. In his experience, possession of rolling papers by high school students was closely associated with the use of marihuana. Suspecting that a closer examination of the purse might yield further evidence of drug use, Mr. Choplick proceeded to search the purse thoroughly. The search revealed a small amount of marihuana, a pipe, a number of empty plastic bags, a substantial quantity of money in one-dollar bills, an index card that appeared to be a list of students who owed T.L.O. money, and two letters that implicated T.L.O. in marihuana dealing.

Mr. Choplick turned the evidence of drug dealing over to the police. At the request of the police, T.L.O.’s mother took her daughter to police headquarters, where T.L.O. confessed that she had been selling marihuana at the high school. [T]he State brought delinquency charges against T.L.O. [She] moved to suppress the evidence found in her purse [as an unconstitutional search under the Fourth Amendment]. The Juvenile Court denied the motion to suppress.

[W]e are faced initially with the question whether [the Fourth] Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. We hold that it does.

It is now beyond dispute that “the Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers.” Equally indisputable is the proposition that the Fourteenth Amendment protects the rights of students against encroachment by public school officials[.]

These two propositions might appear sufficient to [establish that the Fourth Amendment prohibits] unreasonable searches by school officials[, but] the State of New Jersey has argued that the Fourth Amendment was intended to regulate only searches and seizures carried out by law enforcement officers.

It may well be true that the evil toward which the Fourth Amendment was primarily directed was the resurrection of the pre-Revolutionary practice of using general warrants or “writs of assistance” to authorize searches for contraband by officers of the Crown. But this Court has never limited the Amendment’s prohibition on unreasonable searches and seizures to operations conducted by the police. Rather, the Court has long spoken of the Fourth Amendment’s strictures as restraints imposed upon “governmental action”—that is, “upon the activities of sovereign authority.” [Thus, we have applied the Fourth Amendment to various civil governmental officers, including building inspectors, health inspectors, and “even firemen entering privately owned premises to battle a fire.”]

618

Notwithstanding the general applicability of the Fourth Amendment, a few courts have concluded that school officials are exempt from the dictates of the Fourth Amendment [because they “act in loco parentis” based on the authority granted to them by parents].

Such reasoning is in tension with contemporary reality and the teachings of this Court. We have held school officials subject to the commands of the First Amendment, see Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), and the Due Process Clause of the Fourteenth Amendment, see Goss v. Lopez, 419 U.S. 565 (1975). If school authorities are state actors for purposes of the constitutional guarantees of freedom of expression and due process, it is difficult to understand why they should be deemed to be exercising parental rather than public authority when conducting searches of their students. More generally, the Court has recognized that “the concept of parental delegation” as a source of school authority is not entirely “consonant with compulsory education laws.” Today’s public school officials do not merely exercise authority voluntarily conferred on them by individual parents; rather, they act in furtherance of publicly mandated educational and disciplinary policies. In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment.

III

To hold that the Fourth Amendment applies to searches conducted by school authorities is only to begin the inquiry into the standards governing such searches. Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires “balancing the need to search against the invasion which the search entails.” On one side of the balance are arrayed the individual’s legitimate expectations of privacy and personal security; on the other, the government’s need for effective methods to deal with breaches of public order.

We have recognized that even a limited search of the person is a substantial invasion of privacy. Terry v. Ohio, 392 U.S. 1, 24-25 (1967). We have also recognized that searches of closed items of personal luggage are intrusions on protected privacy interests. United States v. Ross, 456 U.S. 798, 822-823 (1982). A search of a child’s person or of a closed purse or other bag carried on her person,³ no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy.

619

Of course, the Fourth Amendment does not protect subjective expectations of privacy that are unreasonable or otherwise “illegitimate.” To receive the protection of the Fourth Amendment, an expectation of privacy must be one that society is “prepared to recognize as legitimate.” The State of New Jersey has argued that because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property “unnecessarily” carried into a school. This argument has two factual premises: (1) the fundamental incompatibility of expectations of privacy with the maintenance of a sound educational environment; and (2) the minimal interest of the child in bringing any items of personal property into the school. Both premises are severely flawed.

Although this Court may take notice of the difficulty of maintaining discipline in the public schools today, the situation is not so dire that students in the schools may claim no legitimate expectations of privacy. We have recently recognized that the need to maintain order in a prison is such that prisoners retain no legitimate expectations of privacy in their cells, but it goes almost without saying that “[t]he prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.”

Nor does the State’s suggestion that children have no legitimate need to bring personal property into the schools seem well anchored in reality. Students at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may carry on their persons or in purses or wallets such nondisruptive yet highly personal items as photographs, letters, and diaries. Finally, students may have perfectly legitimate reasons to carry with them articles of property needed in connection with extracurricular or recreational activities. In short, schoolchildren may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds.

Against the child’s interest in privacy [is] the substantial interest in maintaining discipline on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems. Even in schools that have been spared the most severe disciplinary problems, the preservation of order and a proper educational environment requires close supervision of schoolchildren. “Events calling for discipline are frequent occurrences and sometimes require immediate, effective action.” Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures.

How, then, should we strike the balance between the schoolchild’s expectations of privacy and the school’s need to maintain an environment in which learning can take place? [T]he school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of620 school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. [Because] “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search,” we hold today that school officials need not obtain a warrant before searching a student who is under their authority.

The school setting also requires some modification of the level of suspicion of illicit activity needed to justify a search. Ordinarily, a search must be based upon “probable cause” to believe that a violation of the law has occurred. However, “probable cause” is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although “both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search,…in certain limited circumstances neither is required.” Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although “reasonable,” do not rise to the level of probable cause.

We join the majority of courts that have examined this issue in concluding that the accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the…action was justified at its inception,” second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.” Under ordinary circumstances, a search of a student by a teacher or other school official⁴ will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.⁵ Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question621 of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.

Our review of the facts surrounding the search [in this case] leads us to conclude that the search was in no sense unreasonable for Fourth Amendment purposes. The incident that gave rise to this case actually involved two separate searches, with the first—the search for cigarettes—providing the suspicion that gave rise to the second—the search for marihuana. Although it is the fruits of the second search that are at issue here, the validity of the search for marihuana must depend on the reasonableness of the initial search for cigarettes, as there would have been no reason to suspect that T.L.O. possessed marihuana had the first search not taken place. Accordingly, it is to the search for cigarettes that we first turn our attention.

The New Jersey Supreme Court pointed to two grounds for its holding that the search for cigarettes was unreasonable[: (1) “that possession of cigarettes was not in itself illegal or a violation of school rules” and, thus, provided “no reason to search her purse”; and (2) Mr. Choplick only had “‘a good hunch’” to “suspect that T.L.O. had cigarettes in her purse,” but no reasonable grounds.]

Both these conclusions are implausible. T.L.O. had been accused of smoking, and had denied the accusation in the strongest possible terms when she stated that she did not smoke at all. Surely it cannot be said that under these circumstances, T.L.O.’s possession of cigarettes would be irrelevant to the charges against her or to her response to those charges. T.L.O.’s possession of cigarettes would both corroborate the report that she had been smoking and undermine the credibility of her defense. To be sure, the discovery of the cigarettes would not prove that T.L.O. had been smoking in the lavatory; nor would it, strictly speaking, necessarily be inconsistent with her claim that she did not smoke at all. But it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but only have “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. Rule Evid. 401. The relevance of T.L.O.’s possession of cigarettes to the question whether she had been smoking and to the credibility of her denial that she smoked supplied the necessary “nexus” between the item searched for and the infraction under investigation. Thus, if Mr. Choplick in fact had a reasonable suspicion that T.L.O. had cigarettes in her purse, the search was justified despite the fact that the cigarettes, if found, would constitute “mere evidence” of a violation.

Of course, the New Jersey Supreme Court also held that Mr. Choplick had no reasonable suspicion that the purse would contain cigarettes. This conclusion is puzzling. A teacher had reported that T.L.O. was smoking in the lavatory.622 Certainly this report gave Mr. Choplick reason to suspect that T.L.O. was carrying cigarettes with her; and if she did have cigarettes, her purse was the obvious place in which to find them. Mr. Choplick’s suspicion that there were cigarettes in the purse was not an “inchoate and unparticularized suspicion or ‘hunch,’”; rather, it was the sort of “common-sense conclusio[n] about human behavior” upon which “practical people”—including government officials—are entitled to rely. Of course, even if the teacher’s report were true, T.L.O. might not have had a pack of cigarettes with her. But the requirement of reasonable suspicion is not a requirement of absolute certainty: “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment….” Accordingly, it cannot be said that Mr. Choplick acted unreasonably.

[This] brings us to the question of the further search for marihuana [after discovering the rolling papers]. T.L.O. contend[s] that the scope of the search Mr. Choplick conducted exceeded permissible bounds when he seized and read certain letters that implicated T.L.O. in drug dealing. This argument, too, is unpersuasive. The discovery of the rolling papers concededly gave rise to a reasonable suspicion that T.L.O. was carrying marihuana as well as cigarettes in her purse. This suspicion justified further exploration of T.L.O.’s purse, which turned up more evidence of drug-related activities: a pipe, a number of plastic bags of the type commonly used to store marihuana, a small quantity of marihuana, and a fairly substantial amount of money. Under these circumstances, it was not unreasonable to extend the search to a separate zippered compartment of the purse; and when a search of that compartment revealed an index card containing a list of “people who owe me money” as well as two letters, the inference that T.L.O. was involved in marihuana trafficking was substantial enough to justify Mr. Choplick in examining the letters to determine whether they contained any further evidence. In short, we cannot conclude that the search for marihuana was unreasonable in any respect.

Because the search resulting in the discovery of the evidence of marihuana dealing by T.L.O. was reasonable, the New Jersey Supreme Court’s decision to exclude that evidence from T.L.O.’s juvenile delinquency proceedings on Fourth Amendment grounds was erroneous. Accordingly, the judgment of the Supreme Court of New Jersey is reversed.

Justice Brennan, with whom Justice Marshall joins, concurring in part and dissenting in part.

Today’s decision sanctions school officials to conduct full-scale searches on a “reasonableness” standard whose only definite content is that it is not the same test as the “probable cause” standard found in the text of the Fourth Amendment. In adopting this unclear, unprecedented, and unnecessary departure from generally applicable Fourth Amendment standards, the Court carves out a broad exception to standards that this Court has developed over years of considering Fourth Amendment problems. Its decision is supported neither by precedent nor even by a fair application of the “balancing test” it proclaims in this very opinion.

Three basic principles underly this Court’s Fourth Amendment jurisprudence. First, warrantless searches are per se unreasonable, subject only to a few623 specifically delineated and well-recognized exceptions. Second, full-scale searches—whether conducted in accordance with the warrant requirement or pursuant to one of its exceptions—are “reasonable” in Fourth Amendment terms only on a showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found in the place to be searched. Third, categories of intrusions that are substantially less intrusive than full-scale searches or seizures may be justifiable in accordance with a balancing test even absent a warrant or probable cause, provided that the balancing test used gives sufficient weight to the privacy interests that will be infringed.

Assistant Vice Principal Choplick’s thorough excavation of T.L.O.’s purse was undoubtedly a serious intrusion on her privacy. Unlike the searches in Terry v. Ohio or Adams v. Williams, 407 U.S. 143 (1972), the search at issue here encompassed a detailed and minute examination of respondent’s pocketbook, in which the contents of private papers and letters were thoroughly scrutinized. Wisely, neither petitioner nor the Court today attempts to justify the search of T.L.O.’s pocketbook as a minimally intrusive search in the Terry line. To be faithful to the Court’s settled doctrine, the inquiry therefore must focus on the warrant and probable-cause requirements.

The Court’s decision jettisons the probable-cause standard—the only standard that finds support in the text of the Fourth Amendment—on the basis of its Rohrschach-like “balancing test.” Use of such a “balancing test” to determine the standard for evaluating the validity of a full-scale search represents a sizable innovation in Fourth Amendment analysis. This innovation finds support neither in precedent nor policy and portends a dangerous weakening of the purpose of the Fourth Amendment to protect the privacy and security of our citizens. Moreover, even if this Court’s historic understanding of the Fourth Amendment were mistaken and a balancing test of some kind were appropriate, any such test that gave adequate weight to the privacy and security interests protected by the Fourth Amendment would not reach the preordained result the Court’s conclusory analysis reaches today. Therefore, because I believe that the balancing test used by the Court today is flawed both in its inception and in its execution, I respectfully dissent.

Justice Stevens, with whom Justice Marshall joins, and with whom Justice Brennan joins as to Part I, concurring in part and dissenting in part.

The “limited search for weapons” in Terry was justified by the “immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.” When viewed from the institutional perspective, “the substantial need of teachers and administrators for freedom to maintain order in the schools” is no less acute. Violent, unlawful, or seriously disruptive conduct is fundamentally inconsistent with the principal function of teaching institutions which is to educate young people and prepare them for citizenship. When such conduct occurs amidst a sizable group of impressionable young people, it creates an explosive atmosphere that requires a prompt and effective response.

Thus, warrantless searches of students by school administrators are reasonable when undertaken for those purposes. But the majority’s statement of the624 standard for evaluating the reasonableness of such searches is not suitably adapted to that end. The majority holds that “a search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” This standard will permit teachers and school administrators to search students when they suspect that the search will reveal evidence of even the most trivial school regulation or precatory guideline for student behavior. The Court’s standard for deciding whether a search is justified “at its inception” treats all violations of the rules of the school as though they were fungible. For the Court, a search for curlers and sunglasses in order to enforce the school dress code is apparently just as important as a search for evidence of heroin addiction or violent gang activity.

The majority, however, does not contend that school administrators have a compelling need to search students in order to achieve optimum enforcement of minor school regulations. To the contrary, when minor violations are involved, there is every indication that the informal school disciplinary process, with only minimum requirements of due process, can function effectively without the power to search for enough evidence to prove a criminal case. In arguing that teachers and school administrators need the power to search students based on a lessened standard, the United States as amicus curiae relies heavily on empirical evidence of a contemporary crisis of violence and unlawful behavior that is seriously undermining the process of education in American schools. A standard better attuned to this concern would permit teachers and school administrators to search a student when they have reason to believe that the search will uncover evidence that the student is violating the law or engaging in conduct that is seriously disruptive of school order, or the educational process.

NOTES AND QUESTIONS

1. Should the Fourth Amendment apply to searches of students by school administrators? Did the Court start down a road of applying basic constitutional rights to students in Goss v. Lopez and Tinker v. Des Moines from which it could not reasonably reverse, or is there some basis on which the Court could have distinguished Fourth Amendment protections from First and Fourteenth Amendment protections? The Court’s opinion is conflicted on this score. It holds that the Fourth Amendment applies to school searches, but also holds the general standard of probable cause would be too burdensome for schools. What legal rationale does the Court offer for a lower standard in schools? Is the dissent correct that the majority fails to articulate a full justification for departing from probable cause?

2. Do minors actually have an expectation of privacy in schools? Do you agree with the Court’s balancing of the students’ interests against those of schools? Have privacy expectations today, in any way, diminished below those described by the Court? Does invading students’ privacy without a significant justification send them the wrong messages: that their rights are not important and that they will not necessarily be treated fairly?

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Empirical research by Jason Nance indicates that schools may often conduct searches that violate students’ rights. Jason P. Nance, Random, Suspicionless Searches of Public School Students’ Belongings: A Legal, Empirical, and Normative Analysis, 84 U. Colo. L. Rev. 367 (2013). In fact, unconstitutional searches appear to happen so frequently that students may no longer hold a subjective expectation of privacy. Nance also surveys additional research showing that invasive or unjustified searches can lead to counterproductive school cultures in which students are defiant, disillusioned, and/or complacent. Id.

3. The Court reasons that “the legality of a search of a student should depend simply on the reasonableness in T.L.O., under all the circumstances, of the search.” Notice that the Court adopts a two-pronged inquiry for evaluating searches for reasonableness: whether the search “was justified at its inception” by reasonable grounds for suspecting the search will turn up evidence of a rule or law violation and whether the search conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.” The Court also emphasizes that this analysis is applied to each step of the search, as each step can justify the next. Is the dissent correct that this standard is too broad and flexible and allows the school too much discretion? Is such a standard inherently necessary given the broad array of circumstances schools address?

4. The Court adds that a reasonable basis or justification for a search does not mean an absolute certainty the search will turn up evidence of a violation, but rather “sufficient probability” is all that is required. What level of probability should be necessary: more likely than not, a substantial possibility, or some other standard? In the next case, Safford v. Redding, the Supreme Court will describe it as a “moderate chance of finding evidence of wrongdoing.”

5. As the dissent points out, the Court does not distinguish between minor and major infractions. Thus, this standard would permit the search for evidence of any infraction. Should the right to search based on mere reasonable suspicion be dependent on the seriousness of what is being searched for? Is a school’s interest in securing, for instance, a stolen pencil sufficient to justify a search of a student’s personal belongings? Had the Court attempted to draw a line between major and minor infractions, where could it have drawn the line?

6. Do schools actually need the evidence that they seek in these cases? Under the liberal rules in Goss, would testimony or other circumstantial evidence against a student be sufficient to discipline him? Could the school have suspended T.L.O. without ever having found the cigarettes?

7. Are other forms of searches in schools, such as metal detectors and dog sniffing, sufficiently intrusive to implicate Fourth Amendment protections?

8. In Riley v. California, 134 S. Ct. 2473 (2014), the Supreme Court held that police officers, save special circumstances, must obtain a search warrant to search the digital information on a person’s cellphone or smartphone. The Court emphasized that searching a smartphone implicates “privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Id. at 2488-2489. While not a school case, this recognized privacy interest may have significant implications for students and their pervasive use of smartphones. Riley’s warrant requirement is in tension with the deferential626 reasonable suspicion standard in T.L.O. Bernard James reconciles the two, writing that these cases must be understood

in a framework that allows educators to maintain discipline while allowing for the emerging higher-order privacy interest of students in their smart devices. Consequently, Riley modifies T.L.O., stopping just short of requiring school officials to obtain warrants to justify searching students’ smart devices. The single most important element of this reconciliation is the “reasonable scope” limitation on school searches already built into the T.L.O. framework. Riley’s primary effect on T.L.O. is to make more rigid the “reasonable scope” limitation on school discipline involving student cell phones and tablets. What emerges is an altered T.L.O., prohibiting searches of cell phones and smart devices unless the educator has the additional justification of reasonable suspicion of danger or reasonable suspicion of the student’s resort to the device as a hiding place for evidence of wrongdoing.

Bernard James, T.L.O. and Cell Phones: Student Privacy and Smart Devices After Riley v. California, 101 Iowa L. Rev. 343, 345-346 (2015); see also In re Rafael C., 200 Cal. Rptr. 3d 305, 308 (Ct. App. 2016) (case involving warrantless search of a cellphone after firearms were seized at school).

PROBLEM

Ms. Cross, a middle school English teacher, left her classroom to use the restroom. When she returned, Cross noticed that some small items were missing from her desk, including a paper weight that her mother had given her for Christmas. She became very upset and demanded that the guilty person or persons give it back immediately, but no one did. “Fine,” she stated, “everyone in the first row line up.” She then proceeded to pat down and search every student in the front row. The search included placing her hands in their pockets and going through their book bags. Finding nothing, she searched everyone in the second row. As they were sitting down and the third row was standing up, she heard some items hit the floor. She then saw Dan Brown reaching down toward the items.

“Dan, you should be ashamed of yourself. Go to the office,” she stated. Dan attempted to assert his innocence and explain, but Cross cut him off, saying she did not want to hear it. “You had your chance to speak up when I first came back in the room.” She sent Dan to the office with a note indicating that he had stolen some items from her desk. When Dan got to the office, Principal Clark read the note and shook his head in disgust. “Dan, I thought you had more sense than to do something like this.” Dan protested he had done nothing, but Clark responded that “Ms. Cross said you did.” Per the school handbook’s penalty for theft, Clark suspended Dan for five days.

Did Ms. Cross’s search of the students comport with constitutional requirements? Would it matter whether the last time she had seen the missing items was the previous school period? Was Dan’s suspension constitutional?

In New Jersey v. T.L.O., the Court raised, but did not answer, three crucial issues in the footnotes: (1) whether students have a legitimate expectation of privacy in lockers, desks, or other school property; (2) what standard would627 apply if some other party, such as the police, conducted the search at the behest of a school official; and (3) “whether individualized suspicion is an essential element of the reasonableness standard” for school searches. The issue of suspicionless searches is taken up in the next section in the Supreme Court’s opinion in Vernonia v. Acton. The Court, however, has yet to resolve questions relating to police searches and expectations of privacy in lockers and analogous areas. Thus, these issues have been left to legislatures and lower courts.

In applying the T.L.O. framework, a few courts have found or assumed that students have an expectation of privacy in their lockers, desks, and other areas in school where they might store personal items. S.C. v. State, 583 So. 2d 188 (Miss. 1991); In re Dumas, 515 A.2d 984 (Pa. 1986); Commonwealth v. Cass, 666 A.2d 313 (Pa. Super. Ct. 1995); State v. Joseph T., 336 S.E.2d 728 (W. Va. 1985). They reason that, if a student has an expectation of privacy for a personal item, the expectation is not lost simply because the student places the item in a locker. Most courts, however, have reached the opposite conclusion, particularly in regard to lockers and desks. See, e.g., Shoemaker v. State, 971 S.W.2d 178, 182 (Tex. App. 1998); In re Patrick Y., 358 Md. 50, 61 (2000). The rationale of these latter courts is further bolstered by states and localities that have enacted policies or statutes explicitly indicating that the lockers and desks are school property, and thus students have no expectation of privacy in them. See, e.g., Ark. Code Ann. §6-21-608 (1987); Minn. Stat. Ann. §121A.72 (1998); 105 Ill. Comp. Stat. 5/10-22.6 (2013); Ohio Rev. Code Ann. §3313.20 (1995).

Insofar as students are on notice of their lack of privacy and it has a legitimate statutory basis, Supreme Court guidance may not be urgent. But the stakes are much higher and the opinions much more varied as to the legal standard that applies to invasive searches on school grounds conducted by someone other than a teacher or an administrator. The police presence and role in schools has grown exponentially since the Court’s decision in T.L.O. Students now are routinely subject to any number of searches that do not fall squarely within the doctrine articulated for searches by school administrators. See generally Nance, supra. In the absence of Supreme Court guidance or lower court consensus, students in different jurisdictions are subject to different rules.

The lack of consensus is somewhat understandable given the numerous different circumstances under which a search might occur. In general, lower courts have attempted to distinguish among (1) searches by school administrators who are enforcing discipline policies, (2) searches by school administrators who are assisting criminal enforcement officers, (3) searches by school resources officers or police who work for the school, and (4) searches by police officers who are carrying out criminal justice objectives. The following article offers a practical and legal overview.

Lisa H. Thurau & Johanna Wald, Controlling Partners: When Law Enforcement Meets Discipline in Public Schools

54 N.Y.L. Sch. L. Rev. 977 (2009/10)

In the past decade, police have moved into public schools in unprecedented numbers. Often referred to as “School Resource Officers,” (“SROs”) they have628 assumed a variety of roles that range from strict enforcers of rules and laws, to surrogate parents, to counselors and coaches, and to “an extra pair of hands” for school administrators. [But a] decade after police have become ubiquitous presences in schools across the country, the day-to-day activities and responsibilities of SROs still remain shrouded in mystery, are poorly understood by the public, parents, students, and even the courts, and are often subject to very different interpretations by police and school officials in each district.

Across the country, the issue of the legality of the use of police powers by administrators arises most regularly in the context of searches of students’ persons or possessions. Overall, state courts do not protect youth from searches by administrators. State courts do, however, offer administrators immunity from most claims that students’ Fourth Amendment rights have been violated. The “substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds” is based on the consensus of parents and prosecutors alike that meeting the need for school safety justifies such incursions on students’ privacy.

With the passage of the Gun Free School Zones Act of 1990, the merging of school administrators and police as forces of law and order within schools led to complex arrangements, including the delegation and division of authority and labor. The result has been confusion among police and administrators that continues to this day. This confusion focuses on where administrators’ disciplinary roles stop and police powers begin, what conduct should be handled exclusively by school disciplinarians, and what conduct becomes an arrestable offense. Students, parents, teachers, the courts, and legislatures experience this confusion.

When police are introduced into these situations and are seen consulting with school administrators about whether and when to arrest, the administrators’ power is clearly enhanced. Police may not explicitly direct, control, or otherwise initiate or influence school administrators to undertake searches, but implicitly, this appears to occur. The access to SROs for consultation on whether an act is an arrestable offense increases the likelihood that school administrators will use such information for police functions. The result of these decisions suggests that school administrators’ roles in searches have usurped that of SROs; SROs instead play a more ministerial role, deciding how to use the information they obtain and whether to teach or punish youth.

Even a cursory review of hundreds of state court decisions shows courts’ disparate views of both the role of police in schools and the extent of police powers in the schools. This growing array of decisions manifests the degree to which the issue remains in flux in the courts—as well as in the schools—and the absence of a standard by which officers, police departments, school administrators, and youth advocates can chart their respective courses.

In case law, the scope of SROs’ rights has been explored with contradictory results. Factors including who pays the officer—the school or the police department—have been determinants in court decisions about the scope of power and obligations of SROs. In People v. Dilworth, an Illinois court ruled that the SRO, hired by an alternative school, could conduct searches of students for contraband in furtherance of school safety on a lesser Fourth Amendment standard of suspicion and without obligation to Miranda-ize the students629 searched. And in other decisions, the mere fact of being a police officer in the school was viewed as sufficient justification to reduce the standard of suspicion from probable cause to reasonable suspicion—the level of suspicion a school administrator needs to conduct and justify a search.

A line of cases now differentiates between SROs and “outside” officers. For SROs stationed in schools, Indiana and Tennessee courts have ruled that it is permissible to use a reasonable suspicion standard, while “outside” officers must abide by the probable cause standard. Another line of cases holds that if a police officer is doing what a school administrator would have done, the special powers and authority of the officer should not require special due process protections for students because the powers of the administrator and officer are equivalent. Similarly, if police support a search initiated by a school official outside of school, the reasonableness standard prevails because the state’s interest in keeping youth safe trumps youths’ due process protections.

The overall effects of these decisions must be confusing for America’s fifty-four million public school students. The bottom line looks like this: Administrators perform the duties of law enforcement, but retain the power of a school administrator. SROs may act like teachers and counselors, but they have the power and authority of law enforcement agents. SROs may become confidants of students, yet anything SROs hear, find, or receive from an administrator may be used to prosecute students. An officer dressed in uniform has the same rights of search and seizure as a school administrator and is not hired to handle disciplinary issues, yet the officer can arrest a student for disrespectful and disruptive conduct. A school administrator can ask students for information, which students must provide or face suspension. The school administrator may then give that information to the police who can arrest students.

This confusion becomes even more problematic when one recognizes that the presence of police in schools rests on the presumption that youth understand what conduct may be corrected as a disciplinary matter and what conduct will lead to arrest. Yet, if adults are experiencing difficulty distinguishing between the appropriate and inappropriate characterizations of such behaviors, it is certain that youth will be similarly or more confused. To be sure, youth are aware that fighting, hurting, and stealing are wrong and can sometimes lead to arrest. But most are unaware of some of the more nuanced aspects of the law, or the extent of an officer’s discretion, which can result in charges for less overt wrongdoing or passive participation leading to joint venture charges, disorderly conduct, simple assault, and resisting arrest.

The principle that “ignorance of the law will not excuse” is deep in our law, as is the principle that of all the powers of local government, the “police power is one of the least limitable.” But due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. “Notice is required in a myriad of situations where a penalty or forfeiture might be suffered….”

If notice is core to procedural and substantive due process rights, student handbooks are not sufficient. In schools where SROs work, rigorous effort on the part of school administrators and police officers to fully disclose and explain to youth—a group entitled to special treatment and protection under the law—the630 consequences of their misconduct would appear to be a core due process obligation.

NOTES AND QUESTIONS

1. Is there a reason to treat searches by, at the behest of, or for the benefit of police differently from searches by educators and for educational and safety purposes? From the student’s perspective, does it matter who is searching them or what the purpose of the search is?

2. In dissent in T.L.O., Justice Brennan argued that the Court had gone astray in justifying its reasonableness standard by balancing students’ interests in privacy against the governmental interest in the search. He argued that probable cause is the general standard and can be lowered only based on a few well-justified exceptions, one of which could have been for school discipline. Would this approach have resolved the uncertainties that have arisen with police and other searches in school?

3. Should police officers be present in school, or are schools places that should be reserved for students and educators? Does introducing noneducational officials, particularly law enforcement officers, undermine the sense of community, safety, and freedom that students might otherwise have, or is their presence necessary to protect these very things?

4. For a discussion of various other issues that T.L.O. raised but did not answer, see Barry C. Feld, T.L.O. and Redding’s Unanswered (Misanswered) Fourth Amendment Questions: Few Rights and Fewer Remedies, 80 Miss. L.J. 847, 875-947 (2011) (discussing searches of parked cars on school grounds, canine searches of students and their property, drug testing, and the remedy for unconstitutional searches, including the exclusionary rule).

Aaron Sussman, Learning in Lockdown: School Police, Race, and the Limits of Law

59 UCLA L. Rev. 788 (2012)

Flooding schools with police officers has the direct effect of pushing children toward the track to prison. For many nonwhite students, school criminalization reflects the racial profiling, police harassment, and disproportionate incarceration that they see in their communities. When many [already] associate young, black men more with prisons than with higher education, [turning predominantly black schools into places that “resemble a prison…has a crushing effect,” particularly on students who have in the past been “traumatized by school police practices”]. Officers in criminalized schools have imposed harsh discipline for relatively minor infractions, causing irreparable harm to youths, who, because of their age, are particularly deserving of the opportunity to improve their behavior and achieve social and economic mobility.

By making punishment and suspicion constant elements of school life, police exacerbate the already troubling trend of disproportionately frequent631 discipline for nonwhite students. Racial disparities in school discipline, which have been documented for at least thirty-five years, are stark. For example, black students make up 34 percent of nationwide suspensions despite comprising 17 percent of the school population. Nonwhite students are far more likely than white students to be arrested, suspended, expelled, or exposed to corporal punishment for the same type of conduct. Such disparities cannot be considered rational, as nonwhite students do not misbehave with any greater frequency than white students. These trends are particularly troubling in the New York City school system, where, between 1999 and 2009, black students made up one-third of the student population but over half of all suspensions, and where nearly half of all offenses listed in the Discipline Code, including lateness and wearing a hat, can result in “removal from classroom” or suspension.

Normalizing Expectations of Prison

Given that one in nine black men aged 20-34 is incarcerated, and one in three “young black males live under some form of criminal justice control,” prison is likely something that black students are reminded of on a regular basis. Routine police contact in many nonwhite communities, combined with students in schools that resemble prisons, creates a culture of low expectations and fatalist attitudes. The constant police presence in criminalized schools represents to students that the school’s priority is controlling, not educating, them, and that prison is a normal and expected outcome. This message is reinforced by the merger of the criminalized culture students see inside their schools and the mass incarceration they see in their communities.

For some, school criminalization begs the question of when a school crosses over into being a “school” in name only. Sociologist Loïc Wacquant [sees a] merger between American prisons and urban ghettos:

Like inmates, these children are herded into decaying and overcrowded facilities built like bunkers, where undertrained and underpaid teachers, hampered by a shocking penury of equipment and supplies—many schools have no photocopying machines, library, science laboratory, or even functioning bathrooms, and use textbooks that are thirty-year-old rejects from suburban schools—strive to regulate conduct so as to maintain order and minimize violent incidents. The physical plant of most establishments resembles fortresses, complete with concertina wire on outside fences, bricked up windows, heavy locks on iron doors, metal detectors at the gates and hallways patrol[l]ed by armed guards who conduct spot checks and body searches between buildings. Over the years, essential educational programs have been cut to divert funds for more weapons scanners, cameras, emergency telephones, sign-in desks, and security personnel, whose duty is to repel unwanted intruders from the outside and hem students inside the school’s walls.

These schools, already severely lacking in resources and student services, further hamper their students with the stigma of criminalization and, often, tainted academic and criminal records. In these mostly nonwhite schools, the prison track has become the norm, and academic achievement the aberration.

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QUESTIONS

1. Are there academic and educational costs of heavily policing schools? Do the costs of current discipline policy and the presence of police in schools outweigh the benefits, particularly for minority students? Can we keep schools safe without turning them into “prisons”?

2. What message does heavily policing students in school send to students? Does this message and treatment actually perpetuate behavior that then feeds negative stereotypes of minority students?

3. If schools are going to be heavily policed, should the Constitution mandate a more detailed student discipline code than the one envisioned by the Court in Goss? Have the assumptions that underpinned Goss’s more deferential approach to school administrators eroded?

Almost 25 years passed before the Supreme Court took up its second case addressing a school search based on individualized suspicion. As discussed in the forgoing materials, the flexibility afforded schools in T.L.O. and other cases permitted schools to aggressively enforce school disciplinary policies. Since T.L.O., many charge that some schools have taken their efforts too far. In the case below, the Court evaluated a particularly intrusive search of a student and found that it was unconstitutional. The Court reiterates its holding from T.L.O., but is more skeptical of the school’s search and more concerned with the invasion of privacy. As you read the case, consider whether Safford v. Redding simply raises an egregious set of facts or signals that the Court is now willing to temper some of the discretion it previously afforded schools in discipline matters.

Safford v. Redding

557 U.S. 364 (2009)

Justice Souter delivered the opinion of the Court.

The issue here is whether a 13-year-old student’s Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-the-counter drugs to school. Because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear, we hold that the search did violate the Constitution.

The assistant principal of [Stafford Middle School], Kerry Wilson, came into [13-year-old Savana Redding’s math class] and asked Savana to go to his office. There, he showed her a day planner [containing] several knives, lighters, a permanent marker, and a cigarette. Wilson asked Savana whether the planner was hers; she said it was, but that a few days before she had lent it to her friend, Marissa Glines. Savana stated that none of the items in the planner belonged to her.

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Wilson then showed Savana four white prescription-strength ibuprofen 400-mg pills, and one over-the-counter blue naproxen 200-mg pill, all used for pain and inflammation but banned under school rules without advance permission. He [questioned her about the pills and the report that she had been giving them to other students]. Savana [denied the report and said she knew nothing about the pills. She then consented to a search of her belongings by Wilson and Helen Romero, an administrative assistant. Upon finding nothing,] Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, [and then asked her to remove her clothes]. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.

Savana’s mother filed suit against Safford Unified School District, Wilson, Romero, and Schwallier for conducting a strip search in violation of Savana’s Fourth Amendment rights. The individuals (hereinafter petitioners) moved for summary judgment, raising a defense of qualified immunity. The District Court granted the motion, and a panel of the Ninth Circuit affirmed. A closely divided Circuit sitting en banc reversed. We granted certiorari and now affirm in part, reverse in part, and remand.

The Fourth Amendment “right of the people to be secure in their persons…against unreasonable searches and seizures” generally requires a law enforcement officer to have probable cause for conducting a search. In T.L.O., we recognized that the school setting “requires some modification of the level of suspicion of illicit activity needed to justify a search”[.] We have thus applied a standard of reasonable suspicion to determine the legality of a school administrator’s search of a student, and have held that a school search “will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction”[.]

A number of our cases on probable cause have an implicit bearing on the reliable knowledge element of reasonable suspicion, as we have attempted to flesh out the knowledge component by looking to the degree to which known facts imply prohibited conduct, the specificity of the information received, and the reliability of its source. At the end of the day, however, we have realized that these factors cannot rigidly control, and we have come back to saying that the standards are “fluid concepts that take their substantive content from the particular contexts” in which they are being assessed.

Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer’s evidence search is that it raises a “fair probability” or a “substantial chance” of discovering evidence of criminal activity. The lesser standard for school searches could as readily be described as a moderate chance of finding evidence of wrongdoing.

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III

In this case, the school’s policies strictly prohibit the nonmedical use, possession, or sale of any drug on school grounds, including “‘[a]ny prescription or over-the-counter drug, except those for which permission to use in school has been granted pursuant to Board policy.’” A week before Savana was searched, another student, Jordan Romero (no relation of the school’s administrative assistant), told the principal and Assistant Principal Wilson that “certain students were bringing drugs and weapons on campus,” and that he had been sick after taking some pills that “he got from a classmate.” On the morning of October 8, the same boy handed Wilson a white pill that he said Marissa Glines had given him. He told Wilson that students were planning to take the pills at lunch.

Wilson learned from the school nurse, that the pill was Ibuprofen 400 mg, available only by prescription. [Wilson then went to Marissa’s classroom and, within her reach, found the day planner and the contraband inside it.] Wilson escorted Marissa back to his office.

In the presence of Helen Romero, Wilson requested Marissa to turn out her pockets and open her wallet. Marissa produced a blue pill, several white ones, and a razor blade. [Marissa stated that she had gotten the ibuprofen from Savana Redding. She, however, denied knowing anything about the contents of the planner.] Wilson did not ask Marissa any follow-up questions to determine whether there was any likelihood that Savana presently had pills: neither asking when Marissa received the pills from Savana nor where Savana might be hiding them.

[Through a poison control hotline Wilson determined that the blue pill was] an anti-inflammatory drug, generically called naproxen, available over the counter. At Wilson’s direction, Marissa was then subjected to a search of her bra and underpants by Romero and Schwallier, as Savana was later on. The search revealed no additional pills.

Wilson [then] called Savana into his office and showed her the day planner. Their conversation established that Savana and Marissa were on friendly terms: while she denied knowledge of the contraband, Savana admitted that the day planner was hers and that she had lent it to Marissa. Wilson had other reports of their friendship from staff members, who had identified Savana and Marissa as part of an unusually rowdy group at the school’s opening dance in August, during which alcohol and cigarettes were found in the girls’ bathroom. Wilson had reason to connect the girls with this contraband, for Wilson knew that Jordan Romero had told the principal that before the dance, he had been at a party at Savana’s house where alcohol was served. Marissa’s statement that the pills came from Savana was thus sufficiently plausible to warrant suspicion that Savana was involved in pill distribution.

This suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing. If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in the carryall that has become an item of student uniform in most places today. If Wilson’s reasonable suspicion of pill distribution were not understood635 to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing.

Here it is that the parties part company, with Savana’s claim that extending the search to the point of making her pull out her underwear was constitutionally unreasonable. The exact label for this final step in the intrusion is not important, though strip search is a fair way to speak of it. Romero and Schwallier directed Savana to remove her clothes down to her underwear, and then “pull out” her bra and the elastic band on her underpants. Although Romero and Schwallier stated that they did not see anything when Savana followed their instructions, we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen. The very fact of Savana’s pulling her underwear away from her body in the presence of the two officials who were able to see her necessarily exposed her breasts and pelvic area to some degree, and both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.

Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. The reasonableness of her expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure [(citing various studies)]. The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be.

The indignity of the search does not, of course, outlaw it, but it does implicate the rule of reasonableness as stated in T.L.O., that “the search as actually conducted [be] reasonably related in scope to the circumstances which justified the interference in the first place.” The scope will be permissible, that is, when it is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

Here, the content of the suspicion failed to match the degree of intrusion. Wilson knew beforehand that the pills were prescription-strength ibuprofen and over-the-counter naproxen, common pain relievers equivalent to two Advil, or one Aleve. He must have been aware of the nature and limited threat of the specific drugs he was searching for, and while just about anything can be taken636 in quantities that will do real harm, Wilson had no reason to suspect that large amounts of the drugs were being passed around, or that individual students were receiving great numbers of pills.

Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear. Petitioners suggest, as a truth universally acknowledged, that “students…hid[e] contraband in or under their clothing,” and cite a smattering of cases of students with contraband in their underwear. But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

In so holding, we mean to cast no ill reflection on the assistant principal, for the record raises no doubt that his motive throughout was to eliminate drugs from his school and protect students from what Jordan Romero had gone through. Parents are known to overreact to protect their children from danger, and a school official with responsibility for safety may tend to do the same. The difference is that the Fourth Amendment places limits on the official, even with the high degree of deference that courts must pay to the educator’s professional judgment.

We do mean, though, to make it clear that the T.L.O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

The strip search of Savana Redding was unreasonable and a violation of the Fourth Amendment, but petitioners Wilson, Romero, and Schwallier are nevertheless protected from liability through qualified immunity [because the law was not sufficiently clear to put them on notice of potential liability prior to our decision in this case]. Our conclusions here do not resolve, however, the question of the liability of petitioner Safford Unified School District under 637 Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978), a claim the Ninth Circuit did not address. The judgment of the Ninth Circuit is therefore affirmed in part and reversed in part, and this case is remanded for consideration of the Monell claim.

NOTES AND QUESTIONS

1. What is it about this particular search that makes it constitutionally too invasive: the presence of multiple people while it was taking place, her youth and vulnerability, the intimate bodily invasion, a combination of these factors, or something else?

2. The Court finds that the school officials had reasonable suspicion to search Savana’s backpack and outer clothing, but the search of her undergarments was unreasonable in scope. If, however, the officials had reasonable suspicion that drugs were on her, does the failure to discover them in her backpack or outer clothing lead to the reasonable suspicion that they were hidden in her undergarments? Would such reasoning lead to extensive searches in most situations? Was T.L.O.’s analysis of the scope of a search distinct from Safford?

3. In finding the search unreasonable, the Court also dismisses the notion the contraband would be stashed in undergarments. Are undergarments natural places to hide contraband, particularly now that the Court has indicated searches of them are invasive and more likely to be unreasonable?

4. In T.L.O., the Court indicated that it would not assess how serious or important the suspected infraction was in determining whether a search was permissible. Rather, all potential violations of school rules would justify searches. Does the Court in Safford backtrack on this position when it suggests these particular drugs were not that dangerous? The Court in Safford also suggests that the school “overreacted” to a perceived threat, but in the past the Court has been deferential toward schools in these situations. What explains the Court’s willingness to second-guess school officials here? Is this a sign of a new trend, or a case that will be limited to its facts in the future?

At least one post-Safford lower court opinion has suggested that school districts ought to proceed with more caution in conducting intrusive searches. The court in In re T.A.S., 713 S.E.2d 211 (N.C. Ct. App. 2011), reasoned that, in regard to a search involving a “bra-lift,” school officials should have asked additional questions of informants “to determine the exigency of the situation” and “the nature of the substances in question.…Moreover, while not expedient but to ensure Fourth Amendment protections along with the dignity and sanctity of T.A.S. and the other girls, T.A.S.’s parents could have been called” prior to the search. Id. at 219.

2. Suspicionless Searches

The Court’s opinions in T.L.O. and Safford involve the search of individual students based on suspicion of individual students. The next two cases address an638 entirely different situation: blanket searches of students with no individualized suspicion of any student. These types of searches have become more frequent as schools attempt to rid the environment of drugs and weapons. For instance, some schools search every student for weapons with a metal detector as he or she walks through the door. Some schools have also instituted broad drug testing regimes that subject wide swaths of students to testing, even though most students have done nothing to arouse any suspicion. Putting aside whether these searches are effective or good policy, these blanket searches raise the constitutional question of whether they ought to be subject to the individualized requirement of T.L.O. Under individualized suspicion requirements, schools would be unable to search most students for drugs or weapons, and some drug use and weapons possession would go undetected. But unless courts require individualized suspicion, countless innocent students would be subject to invasions of privacy. Which of these two interests weighs the heaviest, the need to search or the protection of privacy? If some standard other than individualized reasonable suspicion were going to apply, what should it be?

Vernonia School District v. Acton

515 U.S. 646 (1995)

Justice Scalia delivered the opinion of the Court.

The Student Athlete Drug Policy adopted by School District 47J in the town of Vernonia, Oregon, authorizes random urinalysis drug testing of students who participate in the District’s school athletics programs. We granted certiorari to decide whether this violates the Fourth and Fourteenth Amendments to the United States Constitution.

In the mid-to-late 1980’s, teachers and administrators observed a sharp increase in drug use [in Vernonia’s schools]. Students began to speak out about their attraction to the drug culture, and to boast that there was nothing the school could do about it. Along with more drugs came more disciplinary problems. Between 1988 and 1989 the number of disciplinary referrals in Vernonia schools rose to more than twice the number reported in the early 1980’s. Students became increasingly rude during class; outbursts of profane language became common.

[S]tudent athletes were the leaders of the drug culture. This caused the District’s administrators particular concern, since drug use increases the risk of sports-related injury. Expert testimony at the trial confirmed the deleterious effects of drugs on motivation, memory, judgment, reaction, coordination, and performance. The high school football and wrestling coach witnessed a severe sternum injury suffered by a wrestler, and various omissions of safety procedures and misexecutions by football players, all attributable in his belief to the effects of drug use.

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Initially, the District responded to the drug problem by offering special classes, speakers, and presentations designed to deter drug use. It even brought in a specially trained dog to detect drugs, but the drug problem persisted. According to the District Court, [athletes and much of the student body were in rebellion, and disciplinary problems and classroom disruptions had multiplied. Administrators concluded these problems were the result of alcohol abuse, drug abuse, and their glamorization. In response, the school board implemented a drug testing policy “to prevent student athletes from using drugs, to protect their health and safety, and to provide drug users with assistance programs.”]

The Policy applies to all students participating in interscholastic athletics. Students wishing to play sports must sign a form consenting to the testing and must obtain the written consent of their parents. Athletes are tested at the beginning of the season for their sport. In addition, once each week of the season the names of the athletes are placed in a “pool” from which a student, with the supervision of two adults, blindly draws the names of 10% of the athletes for random testing. Those selected are notified and tested that same day, if possible.

The student to be tested completes a specimen control form which bears an assigned number. Prescription medications that the student is taking must be identified by providing a copy of the prescription or a doctor’s authorization. The student then enters an empty locker room accompanied by an adult monitor of the same sex. Each boy selected produces a sample at a urinal, remaining fully clothed with his back to the monitor, who stands approximately 12 to 15 feet behind the student. Monitors may (though do not always) watch the student while he produces the sample, and they listen for normal sounds of urination. Girls produce samples in an enclosed bathroom stall, so that they can be heard but not observed. After the sample is produced, it is given to the monitor, who checks it for temperature and tampering and then transfers it to a vial.

The samples are sent to an independent laboratory, which routinely tests them for amphetamines, cocaine, and marijuana. Other drugs may be screened at the request of the District, but the identity of a particular student does not determine which drugs will be tested. The District follows strict procedures regarding the chain of custody and access to test results. The laboratory does not know the identity of the students whose samples it tests. Only the superintendent, principals, vice-principals, and athletic directors have access to test results, and the results are not kept for more than one year.

If a sample tests positive, a second test is administered as soon as possible to confirm the result. If the second test is negative, no further action is taken. If the second test is positive, the athlete’s parents are notified, and the school principal convenes a meeting with the student and his parents, at which the student is given the option of (1) participating for six weeks in an assistance program that includes weekly urinalysis, or (2) suffering suspension from athletics for the remainder of the current season and the next athletic season. The student is then retested prior to the start of the next athletic season for which he or she is eligible. The Policy states that a second offense results in automatic imposition of640 option (2); a third offense in suspension for the remainder of the current season and the next two athletic seasons.

As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is “reasonableness.” At least in a case such as this, where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, whether a particular search meets the reasonableness standard “‘is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’” Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required, probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

We have found such “special needs” to exist in the public school context. The school search we approved in T.L.O., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however, “‘the Fourth Amendment imposes no irreducible requirement of such suspicion.’” We have upheld suspicionless searches and seizures to conduct drug testing of railroad personnel involved in train accidents, to conduct random drug testing of federal customs officers who carry arms or are involved in drug interdiction, and to maintain automobile checkpoints looking for illegal immigrants and contraband, and drunk drivers.

III

The first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes. The Fourth Amendment does not protect all subjective expectations of privacy, but only those that society recognizes as “legitimate.” What expectations are legitimate varies with context, depending, for example, upon whether the individual asserting the privacy interest is at home, at work, in a car, or in a public park. In addition, the legitimacy of certain privacy expectations vis-à-vis the State may depend upon the individual’s legal relationship with the State. For example, in Griffin v. Wisconsin, 483 U.S. 868 (1987), we held that, although a “probationer’s home, like anyone else’s, is protected by the Fourth Amendmen[t],” the supervisory relationship between probationer and State justifies “a degree of impingement upon [a probationer’s] privacy that would not be constitutional if applied to the public at large.” Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.

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[U]nemancipated minors lack some of the most fundamental rights of self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians.

In T.L.O. we rejected the notion that public schools, like private schools, exercise only parental power over their students, which of course is not subject to constitutional constraints. But while denying that the State’s power over schoolchildren is formally no more than the delegated power of their parents, T.L.O. did not deny, but indeed emphasized, that the nature of that power is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults. “[A] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” While we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional “duty to protect,” we have acknowledged that for many purposes “school authorities ac[t] in loco parentis” with the power and indeed the duty to “inculcate the habits and manners of civility.” Thus, while children assuredly do not “shed their constitutional rights…at the schoolhouse gate,” the nature of those rights is what is appropriate for children in school.

Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere; the “reasonableness” inquiry cannot disregard the schools’ custodial and tutelary responsibility for children. For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases. In the 1991-1992 school year, all 50 States required public school students to be vaccinated against diphtheria, measles, rubella, and polio. Particularly with regard to medical examinations and procedures, therefore, “students within the school environment have a lesser expectation of privacy than members of the population generally.”

Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require “suiting up” before each practice or event, and showering and changing afterwards. Public school locker rooms are not notable for the privacy they afford. The locker rooms in Vernonia are typical: No individual dressing rooms are provided; shower heads are lined up along a wall, unseparated by any sort of partition or curtain; not even all the toilet stalls have doors. As the United States Court of Appeals for the Seventh Circuit has noted, there is “an element of ‘communal undress’ inherent in athletic participation.”

There is an additional respect in which school athletes have a reduced expectation of privacy. By choosing to “go out for the team,” they voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally. In Vernonia’s public schools, they must submit to a preseason physical exam, they must acquire adequate insurance coverage or sign an insurance waiver, maintain a minimum grade point average, and comply with any “rules of conduct, dress, training hours and related matters as may be established for each sport by the head coach and athletic director with the principal’s642 approval.” Somewhat like adults who choose to participate in a “closely regulated industry,” students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.

Having considered the scope of the legitimate expectation of privacy at issue here, we turn next to the character of the intrusion that is complained of. We recognized in Skinner that collecting the samples for urinalysis intrudes upon “an excretory function traditionally shielded by great privacy.” We noted, however, that the degree of intrusion depends upon the manner in which production of the urine sample is monitored. Under the District’s Policy, male students produce samples at a urinal along a wall. They remain fully clothed and are only observed from behind, if at all. Female students produce samples in an enclosed stall, with a female monitor standing outside listening only for sounds of tampering. These conditions are nearly identical to those typically encountered in public restrooms, which schoolchildren use daily. Under such conditions, the privacy interests compromised by the process of obtaining the urine sample are in our view negligible.

The other privacy-invasive aspect of urinalysis is, of course, the information it discloses. In this regard it is significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic. Moreover, the drugs for which the samples are screened are standard, and do not vary according to the identity of the student. And finally, the results of the tests are disclosed only to a limited class of school personnel who have a need to know; and they are not turned over to law enforcement authorities or used for any internal disciplinary function.

Respondents argue, however, that the District’s Policy is in fact more intrusive than this suggests, because it requires the students, if they are to avoid sanctions for a falsely positive test, to identify in advance prescription medications they are taking. We agree that this raises some cause for concern. In Von Raab, we flagged as one of the salutary features of the Customs Service drug-testing program the fact that employees were not required to disclose medical information unless they tested positive, and, even then, the information was supplied to a licensed physician rather than to the Government employer. On the other hand, we have never indicated that requiring advance disclosure of medications is per se unreasonable. Indeed, in Skinner we held that it was not “a significant invasion of privacy.” It can be argued that, in Skinner, the disclosure went only to the medical personnel taking the sample, and the Government personnel analyzing it; and that disclosure to teachers and coaches—to persons who personally know the student—is a greater invasion of privacy. Assuming for the sake of argument that both those propositions are true, we do not believe they establish a difference that respondents are entitled to rely on here [because it] may well be that, if and when James [Acton] was selected for random testing at a time that he was taking medication, the School District would have permitted him to provide the requested information in a confidential manner—for example, in a sealed envelope delivered to the testing lab. Nothing in the Policy643 contradicts that, and when respondents choose, in effect, to challenge the Policy on its face, we will not assume the worst.

Finally, we turn to consider the nature and immediacy of the governmental concern at issue here, and the efficacy of this means for meeting it. That the nature of the concern is important—indeed, perhaps compelling—can hardly be doubted. Deterring drug use by our Nation’s schoolchildren is at least as important as enhancing efficient enforcement of the Nation’s laws against the importation of drugs, which was the governmental concern in Von Raab, or deterring drug use by engineers and trainmen, which was the governmental concern in Skinner. School years are the time when the physical, psychological, and addictive effects of drugs are most severe. “Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound”; “children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor.” And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted. In the present case, moreover, the necessity for the State to act is magnified by the fact that this evil is being visited not just upon individuals at large, but upon children for whom it has undertaken a special responsibility of care and direction. Finally, it must not be lost sight of that this program is directed more narrowly to drug use by school athletes, where the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high. Apart from psychological effects, which include impairment of judgment, slow reaction time, and a lessening of the perception of pain, the particular drugs screened by the District’s Policy have been demonstrated to pose substantial physical risks to athletes.

As for the immediacy of the District’s concerns: We are not inclined to question the District Court’s conclusion that “a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion,” that “[d]isciplinary actions had reached ‘epidemic proportions,’” and that “the rebellion was being fueled by alcohol and drug abuse as well as by the student’s misperceptions about the drug culture.” That is an immediate crisis of greater proportions than existed in [other cases where we upheld drug testing even though there was no documented problem of past drug use].

As to the efficacy of this means for addressing the problem: It seems to us self-evident that a drug problem largely fueled by the “role model” effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs. Respondents argue that a “less intrusive means to the same end” was available, namely, “drug testing on suspicion of drug use.” We have repeatedly refused to declare that only the “least intrusive” search practicable can be reasonable under the Fourth Amendment. Respondents’ alternative entails substantial difficulties—if it is indeed practicable at all. It may be impracticable, for one thing, simply because the parents who are willing to accept random drug testing for athletes are not willing644 to accept accusatory drug testing for all students, which transforms the process into a badge of shame. Respondents’ proposal brings the risk that teachers will impose testing arbitrarily upon troublesome but not drug—likely students. It generates the expense of defending lawsuits that charge such arbitrary imposition, or that simply demand greater process before accusatory drug testing is imposed. And not least of all, it adds to the ever-expanding diversionary duties of schoolteachers the new function of spotting and bringing to account drug abuse, a task for which they are ill prepared, and which is not readily compatible with their vocation.

Taking into account all the factors we have considered above—the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need met by the search—we conclude Vernonia’s Policy is reasonable and hence constitutional.

We caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.

It is so ordered.

Justice O’Connor, with whom Justice Stevens and Justice Souter join, dissenting.

By the reasoning of today’s decision, the millions of students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.

In justifying this result, the Court dispenses with a requirement of individualized suspicion on considered policy grounds. First, it explains that precisely because every student athlete is being tested, there is no concern that school officials might act arbitrarily in choosing whom to test. Second, a broad-based search regime, the Court reasons, dilutes the accusatory nature of the search. In making these policy arguments, of course, the Court sidesteps powerful, countervailing privacy concerns. Blanket searches, because they can involve “thousands or millions” of searches, “pos[e] a greater threat to liberty” than do suspicion-based ones, which “affec[t] one person at a time.” Searches based on individualized suspicion also afford potential targets considerable control over whether they will, in fact, be searched because a person can avoid such a search by not acting in an objectively suspicious way. And given that the surest way to avoid acting suspiciously is to avoid the underlying wrongdoing, the costs of such a regime, one would think, are minimal.

For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment. And we have allowed exceptions in recent years only where it has been clear that a suspicion-based regime would be ineffectual. Because that is not the case here, I dissent.

645

The view that mass, suspicionless searches, however evenhanded, are generally unreasonable remains inviolate in the criminal law enforcement context at least where the search is more than minimally intrusive.

Outside the criminal context, however, in response to the exigencies of modern life, our cases have upheld several evenhanded blanket searches, including some that are more than minimally intrusive, after balancing the invasion of privacy against the government’s strong need. Most of these cases, of course, are distinguishable insofar as they involved searches either not of a personally intrusive nature, such as searches of closely regulated businesses, or arising in unique contexts such as prisons.

In any event, in many of the cases that can be distinguished on the grounds suggested above and, more important, in all of the cases that cannot, we upheld the suspicionless search only after first recognizing the Fourth Amendment’s longstanding preference for a suspicion-based search regime, and then pointing to sound reasons why such a regime would likely be ineffectual under the unusual circumstances presented. The obvious negative implication of this reasoning is that, if such an individualized suspicion requirement would not place the government’s objectives in jeopardy, the requirement should not be forsaken.

[I]n the area of intrusive personal searches, the only recognized exception is for situations in which a suspicion-based scheme would be likely ineffectual. Far from acknowledging anything special about individualized suspicion, the Court treats a suspicion-based regime as if it were just any run-of-the-mill, less intrusive alternative—that is, an alternative that officials may bypass if the lesser intrusion, in their reasonable estimation, is outweighed by policy concerns unrelated to practicability.

But having misconstrued the fundamental role of the individualized suspicion requirement in Fourth Amendment analysis, the Court never seriously engages the practicality of such a requirement in the instant case. And that failure is crucial because nowhere is it less clear that an individualized suspicion requirement would be ineffectual than in the school context. In most schools, the entire pool of potential search targets—students—is under constant supervision by teachers and administrators and coaches, be it in classrooms, hallways, or locker rooms.

The record here indicates that the Vernonia schools are no exception. The great irony of this case is that most (though not all) of the evidence the District introduced to justify its suspicionless drug testing program consisted of first- or second-hand stories of particular, identifiable students acting in ways that plainly gave rise to reasonable suspicion of in-school drug use—and thus that would have justified a drug-related search under our T.L.O. decision. Small groups of students, for example, were observed by a teacher “passing joints back and forth” across the street at a restaurant before school and during school hours. Another group was caught skipping school and using drugs at one of the students’ houses. Several students actually admitted their drug use to school officials (some of them being caught with marijuana pipes). One student presented himself to his teacher as “clearly obviously inebriated” and had to be sent home. Still another was observed dancing and singing at646 the top of his voice in the back of the classroom; when the teacher asked what was going on, he replied, “Well, I’m just high on life.” To take a final example, on a certain road trip, the school wrestling coach smelled marijuana smoke in a motel room occupied by four wrestlers, an observation that (after some questioning) would probably have given him reasonable suspicion to test one or all of them.

In light of all this evidence of drug use by particular students, there is a substantial basis for concluding that a vigorous regime of suspicion-based testing (for which the District appears already to have rules in place) would have gone a long way toward solving Vernonia’s school drug problem while preserving the Fourth Amendment rights of James Acton and others like him. And were there any doubt about such a conclusion, it is removed by indications in the record that suspicion-based testing could have been supplemented by an equally vigorous campaign to have Vernonia’s parents encourage their children to submit to the District’s voluntary drug testing program. In these circumstances, the Fourth Amendment dictates that a mass, suspicionless search regime is categorically unreasonable.

I recognize that a suspicion-based scheme, even where reasonably effective in controlling in-school drug use, may not be as effective as a mass, suspicionless testing regime. In one sense, that is obviously true—just as it is obviously true that suspicion-based law enforcement is not as effective as mass, suspicionless enforcement might be. “But there is nothing new in the realization” that Fourth Amendment protections come with a price. Indeed, the price we pay is higher in the criminal context, given that police do not closely observe the entire class of potential search targets (all citizens in the area) and must ordinarily adhere to the rigid requirements of a warrant and probable cause.

The principal counterargument to all this, central to the Court’s opinion, is that the Fourth Amendment is more lenient with respect to school searches. That is no doubt correct, for schools have traditionally had special guardian-like responsibilities for children that necessitate a degree of constitutional leeway. This principle explains the considerable Fourth Amendment leeway we gave school officials in T.L.O. In that case, we held that children at school do not enjoy two of the Fourth Amendment’s traditional categorical protections against unreasonable searches and seizures: the warrant requirement and the probable cause requirement.

The instant case, however, asks whether the Fourth Amendment is even more lenient than that, i.e., whether it is so lenient that students may be deprived of the Fourth Amendment’s only remaining, and most basic, categorical protection: its strong preference for an individualized suspicion requirement, with its accompanying antipathy toward personally intrusive, blanket searches of mostly innocent people. It is not at all clear that people in prison lack this categorical protection, and we have said “[W]e are not yet ready to hold that the schools and the prisons need be equated for purposes of the Fourth Amendment.” Thus, if we are to mean what we often proclaim—that students do not “shed their constitutional rights…at the schoolhouse gate,”—the answer must plainly be no.

647

NOTES AND QUESTIONS

1. The Court points out that it previously upheld suspicionless searches in connection with train accidents, drug testing customs officers who carry weapons or are involved in drug interdiction, and automobile checkpoints that seek to identify illegal immigrants, contraband, and drunk drivers. Did the Court persuasively establish a special needs exception from reasonable suspicion in the instant case? What balancing test or factors does it use to determine whether this suspicionless search is reasonable?

2. Would an individualized suspicion regime, per the notes in T.L.O., be sufficient to address the drug problem in schools? If so, is a suspicionless search regime justified? Assuming there is a serious drug problem in a school and the amount of effort necessary to root it out under an individualized suspicion regime is likely significant, would such a regime lead to circumstances where educators’ days are dominated by investigation? Is that just a temporary price we must pay to respect innocent students’ privacy?

3. Can one reconcile the absence of a constitutional duty by schools to protect students from harm with a school’s authority to invade students’ constitutional rights to privacy?

4. The Court emphasizes that students voluntarily participate in sports, but is it fair to characterize and justify these searches as voluntary? In other words, the parent and student in this case object to the drug test and argue the opportunity to participate in a school activity is conditioned on the violation of their constitutional rights. Should schools be able to force students to choose between privacy and participating in school activities?

5. How significant is the invasion of privacy here? Is this a run-of-the-mill urine test as the majority suggests, or does it pose serious concerns, particularly for students who may be on medication for conditions they do not wish to disclose? Do, in fact, student athletes have a lower expectation of privacy?

6. Is the student drug testing in this case limited to its facts (dangers of participation in sports, drug epidemic led by athletes), or does it establish precedent for extending drug testing to other extracurricular activities and potentially the entire student population?

7. Schools routinely conduct any number of other suspicionless searches of students and their property, such as forcing students to pass through metal detectors and using dogs to sniff out drugs in lockers, in cars, and on persons. Schools’ interests in conducting these searches is generally equivalent to the interests in Vernonia, but the invasion of students’ privacy is generally lower. Per this reasoning, courts have easily upheld the use of metal detectors. See, e.g., People v. Latasha W., 70 Cal. Rptr. 2d 886 (Ct. App. 1998) (approving use of hand-held metal detectors to randomly wand students for weapons); State v. J.A., 679 So. 2d 316 (Fla. Ct. App. 1996); People v. Dukes, 580 N.Y.S.2d 850 (Crim. Ct. 1992); In re S.S., 680 A.2d 1172 (Pa. Super. Ct. 1996) (approving use of hand-held wands even without school history of violence). But see Martin R. Gardner, Student Privacy in the Wake of T.L.O.: An Appeal for an Individualized Suspicion Requirement for Valid Searches and Seizures in the Schools, 22 Ga. L. Rev.648 897, 943 (1988) (emphasizing that public school metal detectors pose greater invasions than metal detectors in other locations like airports because students are compelled to attend school and thus compelled to consent to the searches).

The use of drug-sniffing dogs is analytically more complex, and its legality can differ based on the varying ways in which students are subject to the dog sniffs. When officials use dogs to detect drugs in student lockers or cars in the school parking lot, courts have generally found that no “search” within the meaning of the Fourth Amendment has even occurred or, at most, that the search is reasonable given its minimal intrusiveness. See, e.g., Myers v. State, 839 N.E.2d 1154 (Ind. 2005); Hill v. Sharber, 544 F. Supp. 2d 670 (M.D. Tenn. 2008); see also Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470 (5th Cir. 1982) (dog sniff of locker is not a search). Under these circumstances, drug-sniffing dogs may be the functional equivalent of a metal detector. But where a dog physically sniffs a student, courts have been more willing to find a search has occurred and that it requires some level of individualized suspicion. See, e.g., B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260 (9th Cir. 1999); Horton, 690 F.2d 470; Commonwealth v. Martin, 626 A.2d 556 (Pa. 1993). But see Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979). Both courts and scholars have emphasized how invasive and intimidating a dog search can be. See, e.g., Plumas, 192 F.3d 1260; Arnold H. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81 Mich. L. Rev. 1229, 1246-1247 (1982) (“[T]he very act of being subject to a body sniff by a German shepherd may be offensive at best or harrowing at worst.”). Regardless, when a properly conducted dog sniff has occurred, courts have treated positive searches as generating the reasonable suspicion to engage in more invasion searches. See, e.g., Doe, 475 F. Supp. at 1024 (upholding search of students’ pockets, but not strip search).

Interestingly, while Vernonia sanctioned drug testing in some circumstances, it does not appear that it has had the effect of encouraging widespread testing. A “study of youth education and society, conducted by the University of Michigan’s Institute for Social Research found that only about twenty of the 600 schools surveyed from 1999-2001 had some type of student drug testing program. Similarly, a recent study of Illinois school districts found that the overwhelming majority of districts had not conducted random drug testing and had no plans to do so.” Cynthia Kelly Conlon, Urineschool: A Study on the Impact of the Earls Decision on High School Random Drug Testing Policies, 32 J.L. & Educ. 297, 298 (2003). Vernonia did, however, provide a legal justification for those who were otherwise considering drug testing.

In Board of Education v. Earls, 536 U.S. 822 (2002), the Court upheld a school policy that required all students who participate in competitive extracurricular activities to submit to drug testing similar to that in Vernonia. The case, however, was distinct from Vernonia in that, in addition to sports, the policy extended to activities like Academic Team, Future Farmers of America, Future Homemakers of America, band, choir, and pom-pom. In addition, unlike Vernonia, this school district did not have a documented drug problem. Justice Thomas, in his649 majority opinion, reasoned that evidence of a national drug problem was sufficient and that, while drugs may present special dangers to athletes, they pose a danger to all students. In short, he reasons that the Court’s decision in Vernonia was not conditioned on specific evidence of a drug problem in the district or the increased danger posed by contact sports. Do you agree with this reading of Vernonia? If Justice Thomas is correct, is there any basis on which to prohibit the extension of drug testing to the entire student body?

State law may provide a greater degree of protection than federal law. The Supreme Court of Washington, for instance, found no special needs exception for a school’s random drug testing of athletes and that, in the absence of individualized suspicion, the drug testing was a violation of students’ right to privacy. York v. Wahkiakum Sch. Dist. No. 200, 163 Wash. 2d 297 (2008). But see Hageman v. Goshen Cty. Sch. Dist. No. 1, 256 P.3d 487 (Wyo. 2011) (treating participation in extracurricular activities as consent).

PROBLEM

While away at a school-sponsored competition, Ms. Sawyer, the faculty coach for the high school chess team, smelled marijuana on Paul and Craig as they exited their hotel room. She then searched their room and discovered a bag of marijuana. They confessed it was theirs but denied that anyone else on the team knew about or used the drugs. Ms. Sawyer, however, was skeptical because the overall team’s performance had inexplicably declined significantly over the past two months. She now suspects drugs may be the cause. In addition, Paul and Craig have two of the highest grade point averages in the school. She believes they must have been corrupted by one of their closer peers; if Paul and Craig are susceptible to drugs, then others surely are. The school board ultimately concurs with her and adopts a drug-testing program for the chess team that mirrors the procedures in Vernonia. Is this policy constitutional? Would it be constitutional if it were applied to all students participating in extracurricular activities? What if it were applied to all students in the school?

F. STUDENT INTERROGATION

The discipline, search, and arrest of students often begin with some form of questioning. During that questioning, students may feel compelled to respond and make statements against their own interests. Nonetheless, courts have devoted relatively little attention to whether these statements are voluntary or coerced. Courts have been willing to treat these interrogations by administrators as “seizures” within the meaning of the Fourth Amendment, but doing so has had little practical effect because courts have applied T.L.O.’s relaxed standard of reasonable suspicion and easily found that the seizures are justified. See, e.g., Shuman v. Penn Manor Sch. Dist., 422 F.3d 141 (3d Cir. 2005);650 Edwards v. Rees, 883 F.2d 882 (10th Cir. 1989). When the questioner is a police officer, however, the opposite is true, and significant criminal law precedent becomes applicable.

In J.D.B. v. North Carolina, 564 U.S. 261 (2011), the Court addressed police interrogations of minors and whether their youth is a relevant factor to be weighed in determining whether police questioning amounts to custodial interrogation that requires Miranda protections (notice of the right to remain silent and have an attorney present). The facts of the case involved a 13-year-old middle school student who was removed “from his classroom by a uniformed police officer, escorted to a closed-door conference room, and questioned by police for at least half an hour” regarding some recent home break-ins and thefts. Id. at 265. No one notified the student’s grandmother that he was being questioned. The student “was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room.” Id. at 266. Instead, the officer indicated that “‘this thing is going to court’” and the student may be “‘sent to juvenile detention before court’” if he did not come clean. The Supreme Court held that “children are ‘most susceptible to influence,’ and ‘outside pressures.’” Id. at 266-267. The Court held that these objective facts must inform the analysis of whether the child is in “custody” and, thus, protected by Miranda warnings.

While J.D.B. involved questioning that occurred on school grounds, the case is not a school case per se. Rather, the case is a criminal law case addressing the general rights of minors wherever they might be. The case, however, is relevant to school law insofar as police are now frequently on school property investigating crimes or monitoring students. The Court’s holding now potentially provides minors with protections they formerly did not have. Yet the Court did not address potential distinctions between officers acting on behalf of school officials, resource officers acting as employees of the school rather than the police department, and school employees acting on behalf of the police. Thus, the same ambiguities that arise in regard to property and body searches might also arise in regard to questioning that occurs at school when the questioner does not neatly fall into the category of school official or law enforcement.

NOTES AND QUESTIONS

1. Would a student in a situation like J.D.B. feel coerced to confess? Would the student feel free to leave? What protections should be afforded such a student?

2. Some advocates argue Miranda warnings are still insufficient to protect minors because many minors, particularly the youngest, will be unable to comprehend the warnings. In fact, one study found that one out of five children between the ages of 14 and 15 were significantly impaired in terms of competency capacities like understanding, reasoning, and appreciation. One out of three children between the ages of 4 and 13 were significantly impaired. Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and651 Adults’ Capacities as Trial Defendants, 27 Law & Hum. Behav. 333, 345-346 (2003). These incapacities were equivalent to those that courts have found sufficient to demonstrate legal incompetence in adults. Id. at 358-361. Moreover, in response to questioning, approximately half of children 15 and younger believe the best response to police interrogation is simply to confess, while less than 20 percent of individuals 18 or older hold this belief. Id. at 352. See also Elizabeth S. Scott & Thomas Grisso, Developmental Incompetence, Due Process, and Juvenile Justice, 83 N.C. L. Rev. 793, 811-817 (2005) (surveying research on juvenile competency). Based on these findings, do students need additional procedural safeguards beyond Miranda? What other protections might be appropriate? Would additional protections undermine school safety and order?

3. Does new social science and the Court’s recognition that children lack the maturity and reasoning necessary to make good decisions provide a basis for courts to hold that students are entitled to due process and protections beyond those currently in place? To the extent students are incapable of always acting properly, are schools acting irrationally in the punishment of some students? Would more careful due process deliberation protect against this possibility?

G. STATUTORY RIGHTS OF PRIVACY

While the courts have sanctioned certain invasions of students’ privacy to achieve disciplinary goals, Congress has enacted broad legislation to protect students’ privacy in one respect. In particular, students have robust protections in regard to the information contained in their various educational records maintained by the school. The primary protections for these rights are found in the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. §1232g, which like other federal education legislation applies to educational institutions that receive federal funding. The Act prohibits educational institutions from releasing or granting access to students’ records to unauthorized outside parties, as well as internal personnel. In addition, it grants students (and the parents of minors) the right to inspect and examine their own student records. If a student or parent believes there is something inaccurate in the records, he or she has the right to challenge that information in a hearing before the school.

In Gonzaga University v. Doe, 536 U.S. 273 (2002), a former student brought suit against Gonzaga University for an alleged violation of the statute. The issue before the Court was whether an individual could bring suit to enforce the provisions of the statute. The Court held that no cause of action exists. Complainants, however, are not entirely without recourse. Pursuant to its obligations under the Act, the Department of Education created the Family Policy Compliance Office (FPCO) “to enforce the Act with respect to all applicable programs.” 34 CFR §99.60(b) (2012). The FPCO permits students and parents who suspect a violation to file complaints, which the Office will investigate. Id. at §99.63. If a violation is found, the FPCO distributes a notice of factual findings652 and a “statement of the specific steps that the agency or institution must take to comply” with FERPA. §99.66.

As a general matter, schools and universities tend to take seriously their obligations under FERPA and follow various protocols to ensure students’ privacy rights are not encroached. Critics, however, argue that schools hide behind FERPA’s prohibitions and use them as an excuse to not turn over information to third parties that might allow them to intervene in the case of potentially dangerous students. See generally Nancy C. Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 Loy. U. Chi. L.J. 205 (2011). Theoretically, this should not be an issue. FERPA contains a specific exception that permits schools to disclose a student’s private information when necessary to protect the safety of other students and persons. 20 U.S.C. §1232g(b)(1)(I) (2006).

1 Obviously, if Newsome had shown that the principal and/or superintendent possessed either a pre-existing animus towards him, or had developed a bias because of their involvement in the incident, they would not have been able to act as decisionmakers in Newsome’s pre-expulsion hearing. Newsome, however, does not make this contention, and we find no evidence in the record to support such a contention.

2 Ratner’s complaint asserts that the school employs a zero tolerance policy regarding weapons, a policy that precludes officials from considering the circumstances of a particular case when meting out punishment. Although we accept Ratner’s assertion as true for the purposes of this appeal, we note that his brief’s recitation of the school’s policies indicates that possession of a weapon on school grounds would not necessarily result in long-term suspension. Instead, as recited by Ratner, board policy in such cases apparently begins with a presumption that offending students will be expelled (permanently removed) but allows school officials discretion to subject offending students “to such lesser disciplinary action, including long-term suspension [suspension for one or two semesters], as may be deemed appropriate.”

3 Author’s Note: Title IV authorizes the Department of Justice to enforce the Civil Rights Act through litigation.

3 We do not address the question, not presented by this case, whether a schoolchild has a legitimate expectation of privacy in lockers, desks, or other school property provided for the storage of school supplies. Nor do we express any opinion on the standards (if any) governing searches of such areas by school officials or by other public authorities acting at the request of school officials.

4 We here consider only searches carried out by school authorities acting alone and on their own authority. This case does not present the question of the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question.

5 We do not decide whether individualized suspicion is an essential element of the reasonableness standard we adopt for searches by school authorities. In other contexts, however, we have held that although “some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure[,]…the Fourth Amendment imposes no irreducible requirement of such suspicion.” Exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where “other safeguards” are available “to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’” Because the search of T.L.O.’s purse was based upon an individualized suspicion that she had violated school rules, we need not consider the circumstances that might justify school authorities in conducting searches unsupported by individualized suspicion.

653

To what extent should public schools be able to limit students’ freedom of expression? This issue—first taken up by the Supreme Court in 1969—continues to challenge schools, students, parents, and communities. Indeed, the tremendous rise in students’ digital speech raises new questions about the extent to which schools can and should be policing student expression.

This chapter begins in Section A with the Supreme Court’s four student speech cases, which together create a basic framework for approaching students’ freedom of expression by articulating different standards depending on the type of speech at issue. As you will read, student speech that is transmitted through a school-sponsored vehicle can be restricted for any reason that is “reasonably related to legitimate pedagogical concerns,” while student speech that simply happens to occur at school is protected unless it will either substantially disrupt the work of the school or invade other students’ rights. Additionally, schools have great latitude to restrict student speech that is “offensively lewd or indecent” or that can “reasonably be regarded as encouraging illegal drug use.”

Taken together, these four cases illustrate the Court’s continuing effort to strike a balance between giving students room to express themselves while simultaneously enabling schools to maintain safe, effective learning environments. But Supreme Court justices have often disagreed over where that balance should lie. Moreover, the student speech framework emerging from these cases is far from comprehensive. Each of the four cases leaves important issues open for interpretation. And taken collectively, the cases say relatively little about schools’ power to police student speech that is harassing or bullying toward other members of the school community, and even less about schools’ jurisdiction once that speech originates off campus. This chapter explores those currently pressing issues in Sections B and C. The concluding section of this chapter, Section D, explores the related question of whether schools can impose dress codes and mandatory uniform policies on students.

Before turning to the Supreme Court’s four student speech cases, it is important to emphasize that some speech is unprotected in any setting. The Supreme Court has held that true threats, incitements to illegal activity, fighting words, obscenity, and child pornography are unprotected by the First654 Amendment. In addition, certain speech can constitute a crime (such as blackmail) or a tort (such as defamation) under relevant law, in which case it is similarly unprotected. Public schools are certainly as free as any other governmental entity to prohibit such speech. The framework set forth below provides public schools with additional power to restrict student speech, even when the First Amendment would protect such speech outside the school context. As you read each of the cases, consider whether the Supreme Court struck the right balance between student expression and school exigencies.

A. THE SUPREME COURT’S STUDENT SPEECH FRAMEWORK

Tinker v. Des Moines Independent Community School District

393 U.S. 503 (1969)

Mr. Justice Fortas delivered the opinion of the Court.

Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John’s sister, was a 13-year-old student in junior high school.

In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted.

On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired—that is, until after New Year’s Day.

This complaint was filed in the United States District Court by petitioners, through their fathers, under [42 U.S.C. §1983]. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from disciplining the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed the complaint. It upheld the constitutionality of the school authorities’ action on the ground that it was reasonable in order to prevent disturbance of school discipline. The court referred to but expressly declined to follow the Fifth655 Circuit’s holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court’s decision was accordingly affirmed, without opinion. We granted certiorari.

The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause. As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska, and Bartels v. Iowa, this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students.

In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court said:

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities.

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment. It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.”

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The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained.

In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption.¹

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On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam. It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student’s statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper. (The student was dissuaded.)

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol—black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam—was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.

The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.

If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at658 least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school. In the circumstances of the present case, the prohibition of the silent, passive “witness of the armbands,” as one of the children called it, is no less offensive to the Constitution’s guarantees.

As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.

Mr. Justice Black, dissenting.

While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically “wrecked” chiefly by disputes with Mary Beth Tinker, who wore her armband for her “demonstration.” Even a casual reading of the record shows that this armband did divert students’ minds from their regular lessons, and that talk, comments, etc., made John Tinker “self-conscious” in attending school with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court’s statement that the few armband students did not actually “disrupt” the classwork, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. The next logical step, it appears to me, would be to hold unconstitutional laws that bar pupils under 21 or 18 from voting, or from being elected members of the boards of education.

In my view, teachers in state-controlled public schools are hired to teach there. Nor are public school students sent to the schools at public expense to broadcast political or any other views to educate and inform the public. The original idea of schools, which I do not believe is yet abandoned as worthless or out of date, was that children had not yet reached the point of experience and wisdom which enabled them to teach all of their elders. It may be that the Nation659 has outworn the old-fashioned slogan that “children are to be seen not heard,” but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn, not teach.

NOTES AND QUESTIONS

1. The Tinker Court indicated that if the students’ armbands had threatened to either “substantially interfere with the work of the school or impinge upon the rights of other students,” then the school would have been justified in restricting them. Here, it readily concluded that neither of these two prongs were met. But what would qualify as a substantial interference or as an invasion of students’ rights?

In upholding student speech restrictions, most courts have focused on Tinker’s first prong, often called the “substantial interference” or “material disruption” prong. For example, courts have frequently upheld school bans on the Confederate flag on grounds that such displays would substantially disrupt the school environment, particularly in schools with histories of racial tension. See, e.g., Defoe v. Spiva, 625 F.3d 324 (6th Cir. 2010); A.M. ex rel. McAllum v. Cash, 585 F.3d 314 (5th Cir. 2009); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734 (8th Cir. 2009); cf. Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243 (3d Cir. 2002) (holding that although school facing racial tension was justified in banning displays of the Confederate flag, it was not justified in banning a student T-shirt that listed “Top 10 reasons you might be a Redneck Sports Fan” because there was insufficient evidence regarding “the direct association of the term ‘redneck’ with the racial hostility and the troublemakers” and the shirt could not be seen as “amounting to a promotion of values consistent with the items and activities that had caused racial unrest”).

The “material disruption” basis for restricting student speech can run into tension with the “heckler’s veto” doctrine—i.e., the notion that the First Amendment does not permit the government to silence messages simply because of the audience’s likely negative reaction. This tension came to the surface in Dariano v. Morgan Hill Unified School Dist., 767 F.3d 764 (9th Cir. 2014). There, during the school’s Cinco de Mayo celebration, a group of Caucasian students wore American flag shirts to school. The school had a history of violence—some of which had occurred along racial lines—and during the previous year’s Cinco de Mayo celebration, an altercation had occurred between a group of predominantly Caucasian students and a group of Mexican students. Given that history, the principal decided to order the students wearing American flag shirts to remove them or turn them inside out. The students acknowledged that their attire was putting them at risk for violence, but still sought to wear the shirts, and ultimately chose to take an excused absence for the day. When they returned, they received numerous threats from other students. They later sued, alleging that the school’s restriction of their shirts had violated the First Amendment. The Ninth Circuit ultimately ruled against them, explaining that the school’s actions stemmed from reasonable concerns for student safety. However, several judges unsuccessfully sought an en banc rehearing of the case, warning660 that the panel had “open[ed] the door to the suppression of any viewpoint opposed by a vocal and violent band of students.”

2. Courts have also used Tinker’s material disruption prong to uphold speech restrictions on student speech that is arguably threatening, regardless of whether the speech could actually qualify as a “true threat” that is altogether unprotected by the First Amendment. See, e.g., Cuff v. Valley Cent. Sch. Dist., 677 F.3d 109 (2d Cir. 2012) (upholding school suspension of fifth grader who drew a picture depicting an astronaut and expressing a desire to blow up the school); see also R. George Wright, Symposium: Doubtful Threats and the Limits of Student Speech Rights, 42 U.C. Davis. L. Rev. 679 (2009). One open question is whether a widespread material disruption is necessary to satisfy this prong or whether significant disruption of even a single student’s education is enough.

3. Courts have invoked Tinker’s “invasion of rights” prong far less often and have not reached consensus as to what it means. In Harper v. Poway Unified School District, discussed in Section B, the Ninth Circuit used this prong to uphold a school’s suppression of a student T-shirt with an antigay message, holding that “[p]ublic school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses.” But the Harper dissent interpreted this prong far more narrowly, arguing that “the ‘rights of others’ language in Tinker can only refer to traditional rights, such as those against assault, defamation, invasion of privacy, extortion and blackmail, whose interplay with the First Amendment is well established.” The lack of clarity on this issue—combined with the uncertainty as to whether disruption of a single student’s education is enough to satisfy Tinker’s first prong—raises significant questions about the extent to which schools can restrict student speech that is hurtful to other students, as explored in more detail in Section B.

4. How did the Tinker Court come up with this two-pronged standard? Kristi Bowman explains that although “[l]ooking at Supreme Court precedent alone, it would seem as though the Tinker tests were created out of whole cloth,” in fact its approach—in particular, its “material disruption” prong—traces back to lower court decisions involving student speech that supported the civil rights movement. Kristi L. Bowman, The Civil Rights Roots of Tinker’s Disruption Tests, 58 Am. U. L. Rev. 1129 (2009).

5. Tinker emphasizes that a “reasonable forecast” is all that schools need to restrict student speech; they are not required to wait until a material disruption or invasion of rights has already occurred. At the same time, Tinker states that “undifferentiated fear or apprehension of disturbance is not enough.” What, then, qualifies as a sufficiently reasonable forecast? Consider the following scenario (drawn from a real case): a student writes a poem entitled “Last Words,” written from the point of view of someone who previously shot 28 students in a classroom. He shows the poem to several of his friends and to his English teacher, who contacts other members of the school administration. The administration calls a community mental health crisis line, which dispatches deputy sheriffs to evaluate the student. They find no probable cause to commit him involuntarily, concluding that there are insufficient grounds to conclude that he is in imminent danger of seriously harming himself or others. Nonetheless, the principal decides661 to temporarily expel him. Was this a violation of the student’s First Amendment rights?

No, said the Ninth Circuit in Lavine v. Blaine School District, 257 F.3d 981 (9th Cir. 2001). The court stated that even though “in retrospect, it may appear that…the school overreacted,” school officials have “a duty to prevent the occurrence of disturbances” and “[f]orecasting disruption is unmistakably difficult to do.” The court went on to state that under Tinker, it would look at the “totality of the relevant facts” to determine whether there was enough to “reasonably lead schools to forecast substantial disruption,” and that here, other facts about the student—including his past history of disciplinary problems—justified the school’s behavior.

6. Should the method of a school’s speech restriction inform the substantial disruption analysis under Tinker? After all, some speech restrictions take the form of punishment, while others solely involve suppression. See, e.g., Emily Gold Waldman, Regulating Student Speech: Suppression versus Punishment, 85 Ind. L.J. 1113 (2010). The Ninth Circuit emphasized this distinction in Dariano, discussed above in Note 1, stating that the “school’s actions presciently avoided an altercation…[the] officials restricted the wearing of certain clothing, but did not punish the students.” Dariano, 767 F.3d 764, 777 (9th Cir. 2014).

Additionally, even within the “punishment spectrum,” schools sometimes stop short of suspension, and instead impose a punishment that is precisely tailored to the disruption that supposedly occurred. In several cases involving student-athletes, for instance, students who have spoken out about their coaches have been thrown off their teams. Courts have divided over whether, in such cases, it is enough for the school to show that the student’s speech risked substantially disrupting the team, even though there was no risk of substantial disruption to the school as a whole. Compare Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007) (holding that students who refused to apologize to a football coach for circulating a critical petition about him could be constitutionally dismissed from the team because “the petition was a direct challenge to [the coach’s] authority, and undermined his ability to lead the team”), with Pinard v. Claskanie Sch. Dist., 467 F.3d 755 (9th Cir. 2006) (holding that it would be unconstitutional for students to be dismissed from a basketball team in retaliation for their circulation of a petition requesting the coach’s resignation). Similarly, if a member of the student council crudely disagrees with school administrators and is not allowed to run for elective office as a result, is it enough for the school to show that her speech undermined the functioning of student government? See Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008) (stating that school did not violate First Amendment by not letting student council secretary run for reelection after she called school administrators “douchebags” on her blog, because her conduct risked “frustration of the proper operation of [the school’s] student government and undermining of the values that student government, as an extracurricular activity, is designed to promote”).

What are the benefits and costs of such a sliding-scale approach to Tinker’s substantial disruption test?

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The student speech at issue in Tinker was, quite clearly, core political speech. Does, and should, the analysis differ when the student speech lacks political content? As you will see, the next case in the Court’s student speech “quartet,” presented below, involves speech raises but does not fully answer this question. Throughout this chapter’s cases, you will notice recurring questions about the importance of whether student speech is political in some way.

Bethel School District No. 403 v. Fraser, a Minor

478 U.S. 675 (1986)

Chief Justice Burger delivered the opinion of the Court.

We granted certiorari to decide whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly.

On April 26, 1983, respondent Matthew N. Fraser, a student at Bethel High School in Pierce County, Washington, delivered a speech nominating a fellow student for student elective office. Approximately 600 high school students, many of whom were 14-year-olds, attended the assembly. Students were required to attend the assembly or to report to the study hall. The assembly was part of a school-sponsored educational program in self-government. Students who elected not to attend the assembly were required to report to study hall. During the entire speech, Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor.

Two of Fraser’s teachers, with whom he discussed the contents of his speech in advance, informed him that the speech was “inappropriate and that he probably should not deliver it,” and that his delivery of the speech might have “severe consequences.”

During Fraser’s delivery of the speech, a school counselor observed the reaction of students to the speech. Some students hooted and yelled; some by gestures graphically simulated the sexual activities pointedly alluded to in respondent’s speech. Other students appeared to be bewildered and embarrassed by the speech. One teacher reported that on the day following the speech, she found it necessary to forgo a portion of the scheduled class lesson in order to discuss the speech with the class.

A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provides:

Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures.

The morning after the assembly, the Assistant Principal called Fraser into her office and notified him that the school considered his speech to have been a663 violation of this rule. Fraser was presented with copies of five letters submitted by teachers, describing his conduct at the assembly; he was given a chance to explain his conduct, and he admitted to having given the speech described and that he deliberately used sexual innuendo in the speech. Fraser was then informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school’s commencement exercises.

Fraser sought review of this disciplinary action through the School District’s grievance procedures. [He] served two days of his suspension, and was allowed to return to school on the third day.

Respondent, by his father as guardian ad litem, then brought this action in the United States District Court for the Western District of Washington. Respondent alleged a violation of his First Amendment right to freedom of speech and sought both injunctive relief and monetary damages under 42 U.S.C. §1983. The District Court [ruled in his favor]. The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, holding that respondent’s speech was indistinguishable from the protest armband in Tinker. We granted certiorari. We reverse.

This Court acknowledged in that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and lewd conduct in the school assembly. That court appears to have proceeded on the theory that the use of lewd and obscene speech in order to make what the speaker considered to be a point in a nominating speech for a fellow student was essentially the same as the wearing of an armband in Tinker as a form of protest or the expression of a political position.

The marked distinction between the political “message” of the armbands in Tinker and the sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals. In upholding the students’ right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note that the case did “not concern speech or action that intrudes upon the work of the schools or the rights of other students.”

It is against this background that we turn to consider the level of First Amendment protection accorded to Fraser’s utterances and actions before an official high school assembly attended by 600 students.

III

The role and purpose of the American public school system were well described by two historians, who stated: “[Public] education must prepare pupils for citizenship in the Republic.…It must inculcate the habits and manners of664 civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” C. Beard & M. Beard, New Basic History of the United States. In Ambach v. Norwick, we echoed the essence of this statement of the objectives of public education as the “[inculcation of] fundamental values necessary to the maintenance of a democratic political system.”

These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.

In our Nation’s legislative halls, where some of the most vigorous political debates in our society are carried on, there are rules prohibiting the use of expressions offensive to other participants in the debate. Can it be that what is proscribed in the halls of Congress is beyond the reach of school officials to regulate?

The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided Court upheld the right to express an antidraft viewpoint in a public place, albeit in terms highly offensive to most citizens. See Cohen v. California. It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school.

Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the “fundamental values necessary to the maintenance of a democratic political system” disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the “work of the schools.” The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.

The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers—and indeed the older students—demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy.

The pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students—indeed to any mature person. By glorifying male665 sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. Some students were reported as bewildered by the speech and the reaction of mimicry it provoked.

This Court’s First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. In Ginsberg v. New York, this Court upheld a New York statute banning the sale of sexually oriented material to minors, even though the material in question was entitled to First Amendment protection with respect to adults. And in addressing the question whether the First Amendment places any limit on the authority of public schools to remove books from a public school library, all Members of the Court, otherwise sharply divided, acknowledged that the school board has the authority to remove books that are vulgar. Board of Education v. Pico. These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children—especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech.

We hold that petitioner School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the “fundamental values” of public school education.

Respondent contends that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech in question would subject him to disciplinary sanctions. This argument is wholly without merit. Given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. The school disciplinary rule proscribing “obscene” language and the prespeech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions.

Justice Brennan, concurring.

Respondent gave the following speech at a high school assembly in support of a candidate for student government office:

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“‘I know a man who is firm—he’s firm in his pants, he’s firm in his shirt, his character is firm—but most…of all, his belief in you, the students of Bethel, is firm.

“‘Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally—he succeeds.

“‘Jeff is a man who will go to the very end—even the climax, for each and every one of you.

“‘So vote for Jeff for A. S. B. vice-president—he’ll never come between you and the best our high school can be.’” App. 47.

The Court, referring to these remarks as “obscene,” “vulgar,” “lewd,” and “offensively lewd,” concludes that school officials properly punished respondent for uttering the speech. Having read the full text of respondent’s remarks, I find it difficult to believe that it is the same speech the Court describes. To my mind, the most that can be said about respondent’s speech—and all that need be said—is that in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent’s remarks exceeded permissible limits. Thus, while I concur in the Court’s judgment, I write separately to express my understanding of the breadth of the Court’s holding.

The Court today reaffirms the unimpeachable proposition that students do not “‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’” If respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate; the Court’s opinion does not suggest otherwise. Moreover, despite the Court’s characterizations, the language respondent used is far removed from the very narrow class of “obscene” speech which the Court has held is not protected by the First Amendment. It is true, however, that the State has interests in teaching high school students how to conduct civil and effective public discourse and in avoiding disruption of educational school activities. Thus, the Court holds that under certain circumstances, high school students may properly be reprimanded for giving a speech at a high school assembly which school officials conclude disrupted the school’s educational mission. Respondent’s speech may well have been protected had he given it in school but under different circumstances, where the school’s legitimate interests in teaching and maintaining civil public discourse were less weighty.

NOTES AND QUESTIONS

1. What is the “test” that emerges from Fraser? Rather than analyzing the case under Tinker’s two prongs, the Supreme Court instead stated that the “pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students” and that the school was justified in punishing his “offensively667 lewd and indecent speech.” Courts have struggled with the question of whether this standard encompasses all speech that can be considered plainly offensive, or whether it covers only plainly offensive speech of a sexual nature. Compare, e.g., Guiles v. Marineau, 461 F.3d 320, 328 (2d Cir. 2006) (suggesting that Fraser should cover only speech “containing sexual innuendo and profanity”), with Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465 (6th Cir. 2000) (approving district court’s conclusion that Fraser permitted a school to prohibit student from wearing a Marilyn Manson T-shirt that depicted a three-faced Jesus and the words “See No Truth. Hear No Truth. Speak No Truth.” on the front, and the word “BELIEVE” on the back, reasoning that the Fraser Court gave schools the “authority to determine what manner of speech in the classroom or in school is appropriate”). Which interpretation do you find more convincing?

2. Further questions about the Fraser standard have stemmed from the majority’s statement that “the First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission.” Does this mean that school officials can restrict any student speech that they believe would undermine their school’s “basic educational mission”? Who gets to define that mission? You will notice that in Morse v. Frederick, which follows later in the chapter, one of the concurrences provided further interpretation of the “educational mission” language, emphasizing that it should not be construed too broadly.

3. If the Supreme Court had instead applied the Tinker test, do you think that the school’s response to Fraser’s speech could be upheld under either the material disruption or invasion of rights prong?

4. The Fraser Court emphasized the lack of political content in Fraser’s speech. How much of a role do you think this played in the Court’s decision? What if Fraser’s speech had included the same sexual content, but also a more clearly political message? The Third Circuit went en banc to consider that question in B.H. v. Easton Area School Dist., 725 F.3d 293 (3d Cir. 2013) (en banc). There, middle-school students sought to wear bracelets bearing the slogan “I boobies! (KEEP A BREAST)” to school as part of a national breast-cancer-awareness campaign. In a 9-5 split, the court ruled that it was unconstitutional for the school to restrict the bracelets. The majority concluded that “Fraser does not permit a school to restrict ambiguously lewd speech that can also plausibly be interpreted as commenting on a social or political issue,” and that the bracelets were “ambiguously” rather than “plainly” lewd. The dissent, however, argued that the bracelets constituted “inappropriate sexual innuendo and double entrendre,” and could be restricted under Fraser.

5. Notice that in Fraser, the Supreme Court introduced a second justification for why schools can restrict student speech that would be protected outside of the school context. While the Tinker Court emphasized a protective rationale—the need to protect other students and/or the larger school environment from harmful speech—the Fraser Court added an educational rationale to the mix. In several places in the opinion, the Court suggested that speech restrictions can themselves teach students about appropriate civil discourse. Do you find the Supreme Court’s protective and educational rationales for ratcheting down668 students’ free speech rights convincing, both in the abstract and as applied to this case? You will find both rationales also present in the next student speech case, decided by the Supreme Court only about a year later: Hazelwood v. Kuhlmeier.

In Fraser, the Supreme Court touched on—but did not fully address the significance of—the fact that Fraser was delivering his speech at a school-sponsored assembly. In its next student speech case, the Court honed in on the distinction between student speech that is disseminated through a school-sponsored setting or vehicle and student speech that merely “happens to occur on the school premises.” As you read Hazelwood, consider whether this division of the student speech universe makes sense to you.

Hazelwood School District v. Kuhlmeier

484 U.S. 260 (1988)

Justice White delivered the opinion of the Court.

This case concerns the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of the school’s journalism curriculum.

Petitioners are the Hazelwood School District in St. Louis County, Missouri; various school officials; Robert Eugene Reynolds, the principal of Hazelwood East High School; and Howard Emerson, a teacher in the school district. Respondents are three former Hazelwood East students who were staff members of Spectrum, the school newspaper. They contend that school officials violated their First Amendment rights by deleting two pages of articles from the May 13, 1983, issue of Spectrum.

Spectrum was written and edited by the Journalism II class at Hazelwood East. The newspaper was published every three weeks or so during the 1982-1983 school year. More than 4,500 copies of the newspaper were distributed during that year to students, school personnel, and members of the community.

The Board of Education allocated funds from its annual budget for the printing of Spectrum. These funds were supplemented by proceeds from sales of the newspaper.

The Journalism II course was taught by Robert Stergos for most of the 1982-1983 academic year. Stergos left Hazelwood East to take a job in private industry on April 29, 1983, when the May 13 edition of Spectrum was nearing completion, and petitioner Emerson took his place as newspaper adviser for the remaining weeks of the term.

The practice at Hazelwood East during the spring 1983 semester was for the journalism teacher to submit page proofs of each Spectrum issue to Principal Reynolds for his review prior to publication. On May 10, Emerson delivered the proofs of the May 13 edition to Reynolds, who objected to two of the articles scheduled to appear in that edition. One of the stories described three669 Hazelwood East students’ experiences with pregnancy; the other discussed the impact of divorce on students at the school.

Reynolds was concerned that, although the pregnancy story used false names “to keep the identity of these girls a secret,” the pregnant students still might be identifiable from the text. He also believed that the article’s references to sexual activity and birth control were inappropriate for some of the younger students at the school. In addition, Reynolds was concerned that a student identified by name in the divorce story had complained that her father “wasn’t spending enough time with my mom, my sister and I” prior to the divorce, “was always out of town on business or out late playing cards with the guys,” and “always argued about everything” with her mother. Reynolds believed that the student’s parents should have been given an opportunity to respond to these remarks or to consent to their publication. He was unaware that Emerson had deleted the student’s name from the final version of the article.

Reynolds believed that there was no time to make the necessary changes in the stories before the scheduled press run and that the newspaper would not appear before the end of the school year if printing were delayed to any significant extent. He concluded that his only options under the circumstances were to publish a four-page newspaper instead of the planned six-page newspaper, eliminating the two pages on which the offending stories appeared, or to publish no newspaper at all. Accordingly, he directed Emerson to withhold from publication the two pages containing the stories on pregnancy and divorce.² He informed his superiors of the decision, and they concurred.

Respondents subsequently commenced this action in the United States District Court for the Eastern District of Missouri seeking a declaration that their First Amendment rights had been violated, injunctive relief, and monetary damages. After a bench trial, the District Court denied an injunction, holding that no First Amendment violation had occurred.

The Court of Appeals for the Eighth Circuit reversed.

We granted certiorari, and we now reverse.

Students in the public schools do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” They cannot be punished merely for expressing their personal views on the school premises—whether “in the cafeteria, or on the playing field, or on the campus during the authorized hours”—unless school authorities have reason to believe that such expression will “substantially interfere with the work of the school or impinge upon the rights of other students.”

We have nonetheless recognized that the First Amendment rights of students in the public schools “are not automatically coextensive with the rights of670 adults in other settings,” Fraser, and must be “applied in light of the special characteristics of the school environment.” Tinker.

We deal first with the question whether Spectrum may appropriately be characterized as a forum for public expression. The public schools do not possess all of the attributes of streets, parks, and other traditional public forums that “time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hence, school facilities may be deemed to be public forums only if school authorities have “by policy or by practice” opened those facilities “for indiscriminate use by the general public,” or by some segment of the public, such as student organizations If the facilities have instead been reserved for other intended purposes, “communicative or otherwise,” then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community.

The policy of school officials toward Spectrum was reflected in Hazelwood School Board Policy 348.51 and the Hazelwood East Curriculum Guide. Board Policy 348.51 provided that “[s]chool sponsored publications are developed within the adopted curriculum and its educational implications in regular classroom activities.” The Hazelwood East Curriculum Guide described the Journalism II course as a “laboratory situation in which the students publish the school newspaper applying skills they have learned in Journalism I.” The lessons that were to be learned from the Journalism II course, according to the Curriculum Guide, included development of journalistic skills under deadline pressure, “the legal, moral, and ethical restrictions imposed upon journalists within the school community,” and “responsibility and acceptance of criticism for articles of opinion.” Journalism II was taught by a faculty member during regular class hours. Students received grades and academic credit for their performance in the course.

School officials did not deviate in practice from their policy that production of Spectrum was to be part of the educational curriculum and a “regular classroom activit[y].” The District Court found that Robert Stergos, the journalism teacher during most of the 1982-1983 school year, “both had the authority to exercise and in fact exercised a great deal of control over Spectrum.” For example, Stergos selected the editors of the newspaper, scheduled publication dates, decided the number of pages for each issue, assigned story ideas to class members, advised students on the development of their stories, reviewed the use of quotations, edited stories, selected and edited the letters to the editor, and dealt with the printing company. Many of these decisions were made without consultation with the Journalism II students. The District Court thus found it “clear that Mr. Stergos was the final authority with respect to almost every aspect of the production and publication of Spectrum, including its content.” Ibid. Moreover, after each Spectrum issue had been finally approved by Stergos or his successor, the issue still had to be reviewed by Principal Reynolds prior to publication.

In sum, the evidence relied upon by the Court of Appeals fails to demonstrate the “clear intent to create a public forum,” that existed in cases in which671 we found public forums to have been created. School officials did not evince either “by policy or by practice,” any intent to open the pages of Spectrum to “indiscriminate use,” ibid., by its student reporters and editors, or by the student body generally. Instead, they “reserve[d] the forum for its intended purpos[e],” as a supervised learning experience for journalism students. Accordingly, school officials were entitled to regulate the contents of Spectrum in any reasonable manner. It is this standard, rather than our decision in Tinker, that governs this case.

The question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators’ ability to silence a student’s personal expression that happens to occur on the school premises. The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school. Hence, a school may in its capacity as publisher of a school newspaper or producer of a school play “disassociate itself,” Fraser, not only from speech that would “substantially interfere with [its] work…or impinge upon the rights of other students,” Tinker, but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences.A school must be able to set high standards for the student speech that is disseminated under its auspices—standards that may be higher than those demanded by some newspaper publishers or theatrical producers in the “real” world—and may refuse to disseminate student speech that does not meet those standards. In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting. A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with “the shared values of a civilized social order,” Fraser, or to associate the school with any position other than neutrality on matters of672 political controversy. Otherwise, the schools would be unduly constrained from fulfilling their role as “a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment.”

Accordingly, we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

This standard is consistent with our oft-expressed view that the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges. It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so “directly and sharply implicate[d],” ibid., as to require judicial intervention to protect students’ constitutional rights.

III

We also conclude that Principal Reynolds acted reasonably in requiring the deletion from the May 13 issue of Spectrum of the pregnancy article, the divorce article, and the remaining articles that were to appear on the same pages of the newspaper.

The initial paragraph of the pregnancy article declared that “[a]ll names have been changed to keep the identity of these girls a secret.” The principal concluded that the students’ anonymity was not adequately protected, however, given the other identifying information in the article and the small number of pregnant students at the school. Indeed, a teacher at the school credibly testified that she could positively identify at least one of the girls and possibly all three. It is likely that many students at Hazelwood East would have been at least as successful in identifying the girls. Reynolds therefore could reasonably have feared that the article violated whatever pledge of anonymity had been given to the pregnant students. In addition, he could reasonably have been concerned that the article was not sufficiently sensitive to the privacy interests of the students’ boyfriends and parents, who were discussed in the article but who were given no opportunity to consent to its publication or to offer a response. The article did not contain graphic accounts of sexual activity. The girls did comment in the article, however, concerning their sexual histories and their use or nonuse of birth control. It was not unreasonable for the principal to have concluded that such frank talk was inappropriate in a school-sponsored publication distributed to 14-year-old freshmen and presumably taken home to be read by students’ even younger brothers and sisters.

The student who was quoted by name in the version of the divorce article seen by Principal Reynolds made comments sharply critical of her father. The principal could reasonably have concluded that an individual publicly identified673 as an inattentive parent—indeed, as one who chose “playing cards with the guys” over home and family—was entitled to an opportunity to defend himself as a matter of journalistic fairness.

Principal Reynolds testified credibly at trial that, at the time that he reviewed the proofs of the May 13 issue during an extended telephone conversation with Emerson, he believed that there was no time to make any changes in the articles, and that the newspaper had to be printed immediately or not at all. It is true that Reynolds did not verify whether the necessary modifications could still have been made in the articles, and that Emerson did not volunteer the information that printing could be delayed until the changes were made. We nonetheless agree with the District Court that the decision to excise the two pages containing the problematic articles was reasonable given the particular circumstances of this case. These circumstances included the very recent replacement of Stergos by Emerson, who may not have been entirely familiar with Spectrum editorial and production procedures, and the pressure felt by Reynolds to make an immediate decision so that students would not be deprived of the newspaper altogether.

In sum, we cannot reject as unreasonable Principal Reynolds’ conclusion that neither the pregnancy article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably have concluded that the students who had written and edited these articles had not sufficiently mastered those portions of the Journalism II curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals whose most intimate concerns are to be revealed in the newspaper, and “the legal, moral, and ethical restrictions imposed upon journalists within [a] school community” that includes adolescent subjects and readers. Finally, we conclude that the principal’s decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them. Accordingly, no violation of First Amendment rights occurred.

Justice Brennan, dissenting.

I would reject the Court’s rationale for abandoning Tinker in this case. The Court offers no more than an obscure tangle of three excuses to afford educators “greater control” over school-sponsored speech than the Tinker test would permit: the public educator’s prerogative to control curriculum; the pedagogical interest in shielding the high school audience from objectionable viewpoints and sensitive topics; and the school’s need to dissociate itself from student expression. None of the excuses, once disentangled, supports the distinction that the Court draws. Tinker fully addresses the first concern; the second is illegitimate; and the third is readily achievable through less oppressive means.

NOTES AND QUESTIONS

1. You may be curious about the actual text of the two articles in the Spectrum. Reproduced below are the divorce and pregnancy articles in full.674 (The other articles on the two censored pages were entitled “Pregnancy Affects Many Teens Each Year,” “Teenage Marriages Face 75 percent Divorce Rate,” and “Runaways and Juvenile Delinquents.” As you read, the principal did not intentionally censor these other articles; they just fell on the same two pages as the ones that he found objectionable. The headline for the two-page spread was “Pressure Describes It All For Today’s Teenagers.”)

As you read the two articles, consider whether you think their censorship was reasonably related to legitimate pedagogical purposes.

Divorce’s Impact on Kids May Have Lifelong Effect By Shari Gordon

In the United States one marriage ends for every two that begin. The North County percentage of divorce is three marriages end out of four marriages that start.

There are more than two central characters in the painful drama of divorce. Children of divorced parents, literally millions of them, are torn by the end of their parents’ marriage.

What causes divorce? According to Mr. Ken Kerkhoff, social studies teacher some of the causes are:

Poor dating habits that lead to marriage.
Not enough variables in common.
Lack of communication.
Lack of desire or effort to make the marriage work.

Figures aren’t the whole story. The fact is that divorce has a psychological and sociological change on the child.

One junior commented on how the divorce occurred, “My dad didn’t make any money, so my mother divorced him.”

“My father was an alcoholic and he always came home drunk and my mom really couldn’t stand it any longer,” said another junior.

Diana Herbert, freshman, said “My dad wasn’t spending enough time with my mom, my sister and I. He was always out of town on business or out late playing cards with the guys. My parents always argued about everything.”

“In the beginning I thought I caused the problem, but now I realize it wasn’t me,” added Diana.

“I was only five when my parents got divorced,” said Susan Kiefer, junior. “I didn’t quite understand what the divorce between my parents really meant until about the age of seven. I understood that divorce meant my mother and father wouldn’t be together again.”

“It stinks!” exclaimed Jill Viola, junior. “They can, afterwards, remarry and start their lives over again, but their kids will always be caught in between.”

Of the 25 students I interviewed, 17 have parents that have remarried.

The feelings of divorce affects [sic] the kids for the rest of their lives, according to Mr. Kerkhoff. The effects of divorce on the kids lead to the following:

Higher rate of absenteeism in school.
Higher rate of trouble with school, officials and police.
Higher rate of depression and insecurity.
Run a higher risk of divorce themselves.

All of these are the latest findings in research on single parent homes.

Pregnancy Article: Individual Stories

Introduction: These stories are the personal accounts of three Hazelwood East students who became pregnant. All names have been changed to keep the identity of these girls a secret.

675

Terri: I am five months pregnant and very excited about having my baby. My husband is excited too. We both can’t wait until it’s born.

After the baby is born, which is in July, we are planning to move out of his house, when we save enough money. I am not going to be coming back to school right away (September) because the baby will only be two months old. I plan on coming back in January when the second semester begins.

When I first found out I was pregnant, I really was kind of shocked because I kept thinking about how I was going to tell my parents. I was also real happy. I just couldn’t believe I was going to have a baby. When I told Paul about the situation, he was really happy. At first I didn’t think he would be because I wasn’t sure if he really would want to take on the responsibility of being a father, but he was very happy. We talked about the baby and what we were going to do and we both wanted to get married. We had talked about marriage before, so we were both sure of what we were doing.

I had no pressures (to have sex). It was my own decision. We were going out four or five months before we had sex. I was on no kind of birth control pills. I really didn’t want to get them, not just so I could get pregnant. I don’t think I’d feel right taking them.

At first my parents were upset, especially my father, but now they’re both happy for me. I don’t have any regrets because I’m happy about the baby and I hope everything works out.

Patti: I didn’t think it could happen to me, but I knew I had to start making plans for me and my little one. I think Steven (my boyfriend) was more scared than me. He was away at college and when he came home we cried together and then accepted it.

At first both families were disappointed, but the third or fourth month, when the baby started to kick and move around, my boyfriend and I felt like expecting parents and we were very excited!

My parents really like my boyfriend. At first we all felt sort of uncomfortable around each other. Now boyfriend supports our baby totally (except for nursing) and my parents see he really does love us, so they’re happy. After I graduate this year, we’re getting married.

I can talk to my mother about anything but I couldn’t face her and tell her I was pregnant. I never thought that would happen to me.

My boyfriend and I have a beautiful relationship and it’s been that way since three years ago. [illegible text] I really do think the fugure looks good for both of us.…

I want to say to others that it isn’t easy and it takes a strong, willing person to handle it because it does mean giving up a lot of things. Secondly, if you’re not able to give your child…affection…, you won’t be a good parent. Lastly, be careful because the pill doesn’t always work. I know because it didn’t work for me.

This experience has made me a more responsible person. I feel that now I am a woman. If I could go back to last year, I would not get pregnant, but I have no regrets. We love our baby more than anything in the world (my boyfriend and I) because we created him! How could we not love him??? He’s so cute and innocent!

Julia: At first I was shocked. You always think “It won’t happen to me.” I was also scared because I did not know how everyone was going to handle it. But then, I started getting excited.

There was never really any pressure (to have sex), it was more of a mutual agreement. I think I was more curious than anything.

I had always planned on continuing school. There was never any doubt about that. I found that it wasn’t as hard as I thought it would be. I was fairly open about it and people seemed to accept it. Greg and I did not get married. We figured that these were not the best circumstances, so we decided to wait and see how things go. We are still planning on getting married when we are financially ready. I am also planning on going to college at least part time.

My parents have been great. They could not have been more [illegible] and helpful. They are doing everything they can for us and enjoy being “grandma and grandpa.” They have also made it clear it was my responsibility.

My parents (especially my mom) are willing to talk about sex, but I always feel very uncomfortable. I guess you never think about your parents doing things like that.

676

2. The Supreme Court’s public forum doctrine provides important background to the Hazelwood decision. As Hazelwood discusses in Part II.A, government property is divided into three categories for free speech purposes: traditional public forums, limited (or designated) public forums, and nonpublic forums. Traditional public forums—like streets and parks—are places that “have immemorially been held in trust for use of the public.” See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). There, content-based speech restrictions are subject to strict scrutiny, and content-neutral restrictions (i.e., those relating to the time, place, or manner of the speech) are permissible only if they are narrowly tailored to serve a significant government interest and leave open ample alternatives for communication. Id. Next, limited public forums consist of public property that the government has opened for use by the public as a place for expressive activity, but in some sort of limited capacity, often in terms of topic or attendance. Id. at 45-46 & n.7. There, the state can make content-based restrictions on speech to reserve the forum for the purpose for which it was opened, but such restrictions must be viewpoint-neutral and reasonable “in light of the purpose served by the forum.” Id.; see also Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473 U.S. 788, 806 (1985). Finally, nonpublic forums refer to “public property which is not by tradition or designation a forum for public communication.” Perry, 460 U.S. at 46. The state can close such forums to speech provided that its regulation is reasonable and viewpoint-neutral—i.e., that the regulation is “not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id.

The Hazelwood majority clearly found that the Spectrum was a nonpublic forum. But the Court then said that this meant that speech restrictions imposed by the school must be reasonable—without also addressing whether they must be viewpoint-neutral, as is usually required for nonpublic forums.

Whether Hazelwood implicitly requires viewpoint-neutrality has given rise to a significant circuit split. Compare Searcey v. Harris, 888 F.2d 1314, 1325 (11th Cir. 1989) (holding that if Hazelwood had meant to dispense with the viewpoint-neutrality requirement, it would have done so explicitly, and should thus be read as maintaining it); Planned Parenthood of S. Nev., Inc. v. Clark Cnty. Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (same); Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617 (2d Cir. 2005) (same), with Ward v. Hickey, 996 F.2d 448, 454 (1st Cir. 1993) (holding that Hazelwood “did not require that school regulation of school-sponsored speech be viewpoint neutral”); Fleming v. Jefferson Cnty. Sch. Dist. R-1, 298 F.3d 918 (10th Cir. 2002) (same). The Third and Sixth Circuits have also weighed in on this question, but ultimately retracted the opinions in which they addressed it, replacing them with en banc decisions that resolved the cases on other grounds. See C.H. ex rel. Z.H. v. Oliva, 195 F.3d 167, 173 (3d Cir. 1999), aff’d in part by an equally divided court, vacated in part, 226 F.3d 198 (3d Cir. 2000) (initially concluding that Hazelwood allowed viewpoint discrimination, but later vacating the decision in which that conclusion was reached); Kincaid v. Gibson, 191 F.3d 719, 727 (6th Cir.), vacated, 197 F.3d 828 (6th Cir. 1999) (initially concluding that Hazelwood prohibited viewpoint discrimination, but subsequently vacated the decision in which that conclusion was reached).

677

Commentators have also divided over this question. Compare, e.g., Katie Hammett, Commentary, School Shootings, Ceramic Tiles, and Hazelwood: The Continuing Lessons of the Columbine Tragedy, 55 Ala. L. Rev. 393 (2004) (arguing that Hazelwood requires viewpoint-neutrality); Susannah Barton Tobin, Note, Divining Hazelwood: The Need for a Viewpoint-Neutrality Requirement in School Speech Cases, 39 Harv. C.R.-C.L. L. Rev. 217 (2004) (same); with Emily Gold Waldman, Returning to Hazelwood’s Core: A New Approach to Restrictions on School-Sponsored Speech, 60 Fla. L. Rev. 63 (2008) (arguing that Hazelwood, at least as applied to student speech, does not require viewpoint-neutrality); Janna J. Annest, Comment, Only the News That’s Fit to Print: The Effect of Hazelwood on the First Amendment Viewpoint-Neutrality Requirement in Public School-Sponsored Forums, 77 Wash. L. Rev. 1227 (2002) (same).

3. The Hazelwood majority concluded that “the principal’s decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them.” By contrast, Justice Brennan’s dissent described the principal as having committed “brutal censorship.” Do you agree with the majority that the principal’s approach was reasonable here?

4. Some courts have applied Hazelwood’s “reasonably related to legitimate pedagogical concerns” standard to contexts beyond student speech, including speech by outside entities on school property and textbook selection. See, e.g., Planned Parenthood of S. Nev., Inc. v. Clark Cnty. Sch. Dist., 941 F.2d 817, 819 (9th Cir. 1991) (applying Hazelwood to speech of organization that wanted to purchase advertisements in school yearbooks and other publications); Virgil v. Sch. Bd., 862 F.2d 1517, 1521 (11th Cir. 1989) (applying Hazelwood to textbook selection). Several have even applied Hazelwood’s standard to school restrictions on teachers’ in-class speech, see, e.g., Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993), while others have instead applied the Supreme Court’s general public employee framework to teacher speech, see, e.g., Boring v. Buncombe Cnty. Bd. of Educ., 136 F.3d 364 (4th Cir. 1998) (en banc). These issues are discussed further in Chapter 10. Emily Gold Waldman asserts that “the extension of Hazelwood beyond the student speech context has severely muddled the question whether Hazelwood permits viewpoint-based speech restrictions,” arguing that Hazelwood should be applied only in student speech cases because “its rationale and approach are uniquely suited to that context.” Waldman, supra, at 65-66.

5. In response to Hazelwood, some states adopted laws providing stronger statutory protection to student journalists. For example, Massachusetts law states that “the right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school. Freedom of expression shall include without limitation, the rights and responsibilities of students, collectively and individually, (a) to express their views through speech and symbols, (b) to write, publish and disseminate their views, (c) to assemble peaceably on school property for the purpose of expressing their opinions.” Mass. Gen. Laws Ann. ch. 71, §82 (2012). Prior to Hazelwood, this statute existed in Massachusetts but was only a “local options statute” applying to towns that affirmatively adopted it; in Hazelwood’s aftermath, Massachusetts made the statute678 mandatory. See Pyle by & Through Pyle v. South Hadley Sch. Comm., 861 F. Supp. 157 (D. Mass 1994); Pyle v. Sch. Comm., 423 Mass. 283 (1996).

After Hazelwood, nearly 20 years passed before the Supreme Court again heard a student speech case. In the interim, the rise of digital speech and social networking technologies raised a major new question: what authority do schools have to regulate students’ off-campus speech? Although some people initially thought that Morse v. Frederick might answer that question, the Supreme Court did not go down that route, as you will see below. Morse does, however, provide some insight into several of the other questions discussed above, such as the meaning of Fraser’s “plainly offensive” standard, the permissibility of viewpoint-based speech restrictions in schools, and the significance of whether there is political content to a student’s speech. It is worth circling back to these issues after reading Morse.

Morse v. Frederick

551 U.S. 393 (2007)

Chief Justice Roberts delivered the opinion of the Court.

At a school-sanctioned and school-supervised event, a high school principal saw some of her students unfurl a large banner conveying a message she reasonably regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, the principal directed the students to take down the banner. One student—among those who had brought the banner to the event—refused to do so. The principal confiscated the banner and later suspended the student. The Ninth Circuit held that the principal’s actions violated the First Amendment, and that the student could sue the principal for damages.

Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” At the same time, we have held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” and that the rights of students “must be ‘applied in light of the special characteristics of the school environment.’” Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it.

On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers were to proceed along a street in front of Juneau-Douglas High School (JDHS) while school was in session. Petitioner Deborah Morse, the school principal, decided to permit staff and students to participate in the Torch Relay as an approved social event or class trip. Students were allowed to leave class to679 observe the relay from either side of the street. Teachers and administrative officials monitored the students’ actions.

Respondent Joseph Frederick, a JDHS senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were JDHS students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.

Principal Morse immediately crossed the street and demanded that the banner be taken down. Everyone but Frederick complied. Morse confiscated the banner and told Frederick to report to her office, where she suspended him for 10 days. Morse later explained that she told Frederick to take the banner down because she thought it encouraged illegal drug use, in violation of established school policy. Juneau School Board Policy No. 5520 states: “The Board specifically prohibits any assembly or public expression that…advocates the use of substances that are illegal to minors.…” In addition, Juneau School Board Policy No. 5850 subjects “[p]upils who participate in approved social events and class trips” to the same student conduct rules that apply during the regular school program.

Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld it. The Juneau School District Board of Education upheld the suspension.

Frederick then filed suit under 42 U.S.C. §1983, alleging that the school board and Morse had violated his First Amendment rights. He sought declaratory and injunctive relief, unspecified compensatory damages, punitive damages, and attorney’s fees. [The District Court granted summary judgment in favor of the school board and Morse.]

The Ninth Circuit reversed. Deciding that Frederick acted during a “school-authorized activit[y],” and “proceed[ing] on the basis that the banner expressed a positive sentiment about marijuana use,” the court nonetheless found a violation of Frederick’s First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a “risk of substantial disruption.” The court further concluded that Frederick’s right to display his banner was so “clearly established” that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional, and that Morse was therefore not entitled to qualified immunity.

We granted certiorari on two questions: whether Frederick had a First Amendment right to wield his banner, and, if so, whether that right was so clearly established that the principal may be held liable for damages. We resolve the first question against Frederick, and therefore have no occasion to reach the second.

At the outset, we reject Frederick’s argument that this is not a school speech case—as has every other authority to address the question. The event occurred680 during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.” There is some uncertainty at the outer boundaries as to when courts should apply school speech precedents, but not on these facts.

III

The message on Frederick’s banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all. Frederick himself claimed “that the words were just nonsense meant to attract television cameras.” But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.

As Morse later explained in a declaration, when she saw the sign, she thought that “the reference to a ‘bong hit’ would be widely understood by high school students and others as referring to smoking marijuana.” She further believed that “display of the banner would be construed by students, District personnel, parents and others witnessing the display of the banner, as advocating or promoting illegal drug use”—in violation of school policy. (“I told Frederick and the other members of his group to put the banner down because I felt that it violated the [school] policy against displaying…material that advertises or promotes use of illegal drugs”).

We agree with Morse. At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits…”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.

The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is “meaningless and funny.” The dissent similarly refers to the sign’s message as “curious,” “ambiguous,” “nonsense,” “ridiculous,” “obscure,” “silly,” “quixotic,” and “stupid.” Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.

The dissent mentions Frederick’s “credible and uncontradicted explanation for the message—he just wanted to get on television.” But that is a description681 of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says. The way Frederick was going to fulfill his ambition of appearing on television was by unfurling a pro-drug banner at a school event, in the presence of teachers and fellow students.

Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession.

The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may.

Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” The essential facts of Tinker are quite stark, implicating concerns at the heart of the First Amendment. The students sought to engage in political speech, using the armbands to express their “disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them.” Political speech, of course, is “at the core of what the First Amendment is designed to protect.”

This Court’s next student speech case was Fraser. The mode of analysis employed in Fraser is not entirely clear. The Court was plainly attuned to the content of Fraser’s speech, citing the “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.” But the Court also reasoned that school boards have the authority to determine “what manner of speech in the classroom or in school assembly is inappropriate.”

We need not resolve this debate to decide this case. For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. In school, however, Fraser’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Second, Fraser established that the mode of analysis set forth in Tinker is not absolute. Whatever approach Fraser employed, it certainly did not conduct the “substantial disruption” analysis prescribed by Tinker.

Our most recent student speech case, [Hazelwood v.]Kuhlmeier, concerned “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur. The case is nevertheless instructive682 because it confirms both principles cited above. Kuhlmeier acknowledged that schools may regulate some speech “even though the government could not censor similar speech outside the school.” And, like Fraser, it confirms that the rule of Tinker is not the only basis for restricting student speech.

Drawing on the principles applied in our student speech cases, we have held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights…at the schoolhouse gate,’…the nature of those rights is what is appropriate for children in school.” Vernonia. In particular, “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest. Drug abuse can cause severe and permanent damage to the health and well-being of young people.

Just five years ago, we wrote: “The drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.” The problem remains serious today. About half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and about one-fifth of 8th graders. Nearly one in four 12th graders has used an illicit drug in the past month. Some 25% of high schoolers say that they have been offered, sold, or given an illegal drug on school property within the past year.

Congress has declared that part of a school’s job is educating students about the dangers of illegal drug use. It has provided billions of dollars to support state and local drug-prevention programs, and required that schools receiving federal funds under the Safe and Drug-Free Schools and Communities Act of 1994 certify that their drug-prevention programs “convey a clear and consistent message that…the illegal use of drugs [is] wrong and harmful,”

Thousands of school boards throughout the country—including JDHS—have adopted policies aimed at effectuating this message. Those school boards know that peer pressure is perhaps “the single most important factor leading schoolchildren to take drugs,” and that students are more likely to use drugs when the norms in school appear to tolerate such behavior. Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse.

The “special characteristics of the school environment,” and the governmental interest in stopping student drug abuse—reflected in the policies of Congress and myriad school boards, including JDHS—allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of “undifferentiated fear or apprehension of disturbance” or “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, extends well beyond an abstract desire to avoid controversy.

Petitioners urge us to adopt the broader rule that Frederick’s speech is proscribable because it is plainly “offensive” as that term is used in Fraser. We683 think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of “offensive.” After all, much political and religious speech might be perceived as offensive to some. The concern here is not that Frederick’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.

Although accusing this decision of doing “serious violence to the First Amendment” by authorizing “viewpoint discrimination,” the dissent concludes that “it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting.” Nor do we understand the dissent to take the position that schools are required to tolerate student advocacy of illegal drug use at school events, even if that advocacy falls short of inviting “imminent” lawless action. Stripped of rhetorical flourishes, then, the debate between the dissent and this opinion is less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use. We have explained our view that it does. The dissent’s contrary view on that relatively narrow question hardly justifies sounding the First Amendment bugle.

* * *

School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.

Justice Thomas, concurring.

The Court today decides that a public school may prohibit speech advocating illegal drug use. I agree and therefore join its opinion in full. I write separately to state my view that the standard set forth in Tinker is without basis in the Constitution. [T]he history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools.

Justice Alito, with whom Justice Kennedy joins, concurring.

I join the opinion of the Court on the understanding that (1) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (2) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.”

The opinion of the Court correctly reaffirms the recognition in Tinker of the fundamental principle that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court is also correct in noting that Tinker does not set out the only ground on which in-school student speech may be regulated by state actors in a way that would not be constitutional in other settings.

684

But I do not read the opinion to mean that there are necessarily any grounds for such regulation that are not already recognized in the holdings of this Court. I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.

The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The “educational mission” of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups.

During the Tinker era, a public school could have defined its educational mission to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission. Alternatively, a school could have defined its educational mission to include the promotion of world peace and could have sought to ban the wearing of buttons expressing support for the troops on the ground that the buttons signified approval of war. The “educational mission” argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment.

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority—including their authority to determine what their children may say and hear—to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis.

For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting. The special characteristic that is relevant in this case is the threat to the physical safety of students. School attendance can expose students to threats to their physical safety that they would not otherwise face. Outside of school, parents can attempt to protect their children in many ways and may take steps to monitor and exercise control over the persons with whom their children associate. Similarly, students, when not in school, may be able to avoid threatening individuals and situations. During school hours, however, parents are not present to provide685 protection and guidance, and students’ movements and their ability to choose the persons with whom they spend time are severely restricted. Students may be compelled on a daily basis to spend time at close quarters with other students who may do them harm. Experience shows that schools can be places of special danger.

In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker’s “substantial disruption” standard permits school officials to step in before actual violence erupts.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.

Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting.

A significant fact barely mentioned by the Court sheds a revelatory light on the motives of both the students and the principal of Juneau-Douglas High School (JDHS). On January 24, 2002, the Olympic Torch Relay gave those Alaska residents a rare chance to appear on national television. As Joseph Frederick repeatedly explained, he did not address the curious message—“BONG HiTS 4 JESUS”—to his fellow students. He just wanted to get the camera crews’ attention.

In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed.

Among other things, the Court’s ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use.³ If Frederick’s stupid reference to marijuana can in the Court’s view justify censorship, then high school students everywhere could be forgiven for zipping their mouths about drugs at school lest some “reasonable” observer censor and then punish them for promoting drugs.

686

Consider, too, that the school district’s rule draws no distinction between alcohol and marijuana, but applies evenhandedly to all “substances that are illegal to minors.” Given the tragic consequences of teenage alcohol consumption—drinking causes far more fatal accidents than the misuse of marijuana—the school district’s interest in deterring teenage alcohol use is at least comparable to its interest in preventing marijuana use. Under the Court’s reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a “WINE SiPS 4 JESUS” banner—which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message—the breathtaking sweep of its opinion suggests it would.

Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views. In the national debate about a serious issue, it is the expression of the minority’s viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular.

I respectfully dissent.

NOTES AND QUESTIONS

1. An interesting mix of amicus curiae briefs came into the Supreme Court on behalf of Joseph Frederick. Six conservatively oriented religious groups (the Christian Legal Society, the American Center for Law and Justice, the Liberty Legal Institute, the Alliance Defense Fund, Liberty Counsel, and the Rutherford Institute) joined groups like the American Civil Liberties Union and the Student Press Law Center to support Frederick in his lawsuit.

What produced this alliance? In large part, all of these groups were united in their opposition to the arguments made in support of the school district’s actions here. In urging the Supreme Court to grant certiorari on this case, the National School Boards Association (NSBA) and the American Association of School Administrators (AASA) had filed an amicus brief urging the Court to use the case as a vehicle for clarifying some of the open questions in its student speech framework, such as the meaning of Fraser’s “plainly offensive” standard and Tinker’s invasion of rights prong. Once the Supreme Court granted certiorari, these groups’ subsequent amicus brief urged the Court to rule for the school on grounds that Fraser permitted schools to restrict “messages inimical to a school’s core educational mission” or that Tinker’s invasion of rights prong allowed schools to censor student speech that was hurtful to other students.

Such rationales alarmed advocates for religious students, who were worried that a broadly worded decision in the school’s favor would undermine their own clients’ ability to express views like religiously motivated opposition to abortion or homosexuality. Douglas Laycock, a law professor who coauthored687 Liberty Legal Institute’s amicus brief, writes that the briefs supporting the school district “spread great alarm among all free speech advocates who read [them], including six conservative Christian groups who found themselves forced to file briefs in support of a student proclaiming ‘BONG HiTS 4 JESUS.’” Douglas Laycock, Paper Symposium: Speech and the Public Schools After Morse v. Frederick: High Value Speech and the Basic Educational Mission of a Public School: Some Preliminary Thoughts, 12 Lewis & Clark L. Rev. 111, 114 (2008).

These groups’ briefs thus urged the Court not to decide the case on a broad rationale that would undermine students’ ability to engage in religious speech at school. Liberty Legal Institute wrote, for instance, that “[w]hat amicus fears most is that a loosely worded opinion, holding that students have no First Amendment right to promote drug use, will fatally undermine protection for core religious and political speech in public schools.” In fact, the Liberty Legal Institute proposed the following rationale for reversing the lower court verdict in Frederick’s favor:

If the Court wishes to reverse in this case, it could carve out an explicit exception for advocacy of the use of illegal drugs and add that explicit exception to the sexually explicit speech identified in [Fraser]. But it must be very clear about the basis for that exception.…If a school can prohibit the speech at issue in this case, it is because the school has a valid rule prohibiting students from using drugs, and because Respondent’s sign might be interpreted as encouraging student violations of the valid rule of conduct.

Does this rationale sound familiar? Do you think that the Morse opinion alleviated the concerns of groups like the Liberty Legal Institute? And do you think it helped provide the clarity that groups like the NSBA and AASA had been hoping for? Keep these questions in mind as you read the cases in Section B, two of which predate Morse and one of which came afterward.

2. Although Justice Alito signed on to the majority opinion, he also wrote separately to emphasize the narrow basis on which he joined the opinion. And without Justice Alito’s vote, there would not have been five votes for the majority. (Indeed, given that Justice Kennedy concurred with Justice Alito, there might not have even been four votes.) As such, Alito’s concurrence has sometimes been referred to as the “controlling” opinion in the case. See Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765, 768 (5th Cir. 2007). That said, as the Seventh Circuit has pointed out, Justices Alito and Kennedy joined the majority as well, and thus it is indeed a majority opinion rather than a mere plurality. See Nuxoll v. Indian Prairie Sch. Dist., 523 F.3d 668 (7th Cir. 2008).

3. Do you think that the line that Justice Alito draws—between speech that advocates illegal drug use and speech that comments on any political issue—is workable? Can you think of examples of student speech that might straddle this line?

4. Why did the Justices in the majority think that Frederick’s speech—and, by extension, other speech that advocates illegal drug use—was harmful to other students? Do you agree?

5. The Supreme Court quickly rejected the notion that Morse was not a student speech case, stating that there is “some uncertainty at the outer boundaries as to when courts should apply school speech precedents, but not on these688 facts.” Why was the Morse Court so emphatic that this was, indeed, a student speech case? Do you agree?

Having read the Supreme Court’s four student speech cases, think about the framework that they collectively create: “plainly offensive” speech is governed by Fraser, school-sponsored speech by Hazelwood, speech advocating illegal drug use by Morse, and everything else is left for Tinker. Does this framework strike the right balance? Do you notice any trends in how the Supreme Court’s approach to student speech has unfolded over the past half century? What topics stand out to you as glaring open issues? Here are some reflections to get you thinking further about these questions.

1. Anne Dupre observes that there is a “paradox inherent in the issue of school speech.” She writes:

How does a nation “conceived in liberty” stay alive while giving its citizens the freedom to undermine its most sacred principles and institutions? That this particular national dialogue is focused on freedom of expression in the school raises an especially poignant aspect of the question. For the school, together with parents, has the important mission of educating each generation of new citizens so they will have the tools necessary to preserve and protect those tenets of democracy upon which the United States was founded. This process does not happen overnight, or by osmosis. To gain a serious understanding of the civic virtue that is necessary for self-government takes a concentrated discipline of mind. Teachers attempting to instruct their students about this subject (along with algebra and geography) need to maintain some form of order so that learning can occur. Thus, the paradox inherent in the issue of school speech surfaces: The state (in the form of the public school) takes away some liberty from the individual student in order to preserve the liberty of a nation.

Anne Dupre, Speaking Up: The Unintended Costs of Free Speech in Public Schools (2009). Do you agree that there is a paradox here? Do you think that the Supreme Court’s framework navigates it appropriately?

2. Numerous commentators describe the path from Tinker to Morse as representing a steady erosion of student speech rights. Clay Calvert, for example, writes that Tinker—now more than 40 years old—is facing a major midlife crisis. Calvert argues that

for Tinker to survive its midlife crisis and to be restored to its original grand promise as an important barrier against school-imposed censorship, several things must happen. First, judges must not give excessive deference to school administrators each and every time those administrators claim that speech, be it political or offensive or violent or some combination of all three, will cause a substantial or material disruption of the educational atmosphere.…The second thing that must occur for Tinker to be reinvigorated, if not resuscitated, is that the rights-of-others prong of Tinker, which was moribund until the Ninth Circuit’s decision in Harper [presented in Section B], must be abandoned. Harper illustrates the speculative nature of its application and the danger that it could lead to viewpoint-based discrimination against political expression. Finally, and most importantly (beyond, of course, not letting the view that Justice Thomas expressed in Morse prevail at the level of the nation’s highest court), the Supreme Court cannot continue to carve out exceptions to Tinker, as it has done now in Fraser, Kuhlmeier, and Morse. If it continues to go down this path, the exceptions will eventually swallow up the Tinker rule.

689 Clay Calvert, Tinker’s Midlife Crisis: Tattered and Transgressed but Still Standing, 58 Am. U. L. Rev. 1167, 1191 (2009); see also Erwin Chemerinsky, Isaac Marks Memorial Lecture: Not a Free Speech Court, 53 Ariz. L. Rev. 723, 728 (2011) (arguing that “it is difficult to read Morse and see the Roberts Court as protective of free speech”).

Others are less convinced. Mark Cordes, for example, writes that

concerns that Morse reflects a further erosion of student speech rights are largely overstated. To be sure, Morse continues the trend of Supreme Court decisions after Tinker in which school interests seemingly always trump student speech interests. And the balancing implicit in Morse might give courts greater latitude to do that in the future. But the majority opinion in Morse was careful to distinguish the speech in that case from what it labeled core political and religious speech, implying significant protection for such speech at the core of the First Amendment. This was even more clear in Justice Alito’s critical concurring opinion.…Taken together, these opinions reflect a strong sentiment to protect student speech perceived to be at the heart of the First Amendment.

Mark W. Cordes, Making Sense of High School Speech After Morse v. Frederick, 17 Wm. & Mary Bill of Rts. J. 657 (2009).

3. How did the actual student speakers in Tinker, Fraser, Hazelwood, and Morse respond to the Supreme Court decisions in their cases? Scott Moss tracked down the student-plaintiffs in each of these cases and interviewed them about this question. He reports:

While the school speech plaintiffs all remain proud of their controversial youthful speech, years or even decades later, the Court outcomes have strikingly little correlation with how vindicated or defeated each feels. John and Mary Beth Tinker and Chris Eckhardt, while viewing their Court victory as vindication, did not even remember how or why they never pursued their case to a verdict. Matt Fraser felt like a winner because the later reversal of his preliminary injunction victory did not change the fact that he won a district court order reinstating him as a graduation speaker, to the chagrin of school officials. Joe Frederick’s Court loss was followed by a rich, multichapter epilogue: he won a settlement on remand on his state law claim; he pulled off other controversial speech his principal could not keep from getting published; he won a settlement and his father won a court verdict, in separate lawsuits claiming retaliation by their local officials; yet Joe’s litigation and his father’s job loss were financially crushing, forcing both to leave the country to find work, though Joe seemed to enjoy his travels abroad. So the Tinker plaintiffs have lived the lives of winners despite never receiving a verdict, while the losing Morse and Fraser plaintiffs drew substantial vindication from less-famed battles than their Court appeals. Only Cathy Kuhlmeier, the least famous of the six plaintiffs in the four cases, felt such a sense of defeat from her loss that she went from firebrand student to apolitical adult. But even Kuhlmeier feels a sense of pride in having fought the fight, in having her children and their friends express surprise when they Google her, and in being called a “freedom fighter” by admiring teenagers who, for all anyone knows, could well be the next Tinker, Eckhardt, Fraser, Kuhlmeier, or Frederick.

Scott A. Moss, The Over-Hyped Path from Tinker to Morse, 63 Fla. L. Rev. 1407, 1457 (2011).

4. Taken together, the Supreme Court’s four student speech cases create a framework that prescribes four different standards depending on the type of student speech at issue. As Emily Gold Waldman points out, however, the framework does not build in any differentiation as to the type of speech690 restriction—advance suppression or after-the-fact punishment—at issue. Should it? Waldman writes:

[I]n none of [the Supreme Court’s] four cases was a student speaker punished for his speech without having first received advance warning from school officials about the speech in question. In other words, the Supreme Court has never confronted a case where a speech restriction solely took the form of after-the-fact student punishment. As a result, the appropriate protections for that particular scenario have never been built into the Supreme Court’s student-speech framework.

She contends that “for a school to constitutionally punish a student for her speech, it should not be enough to show that that speech itself could be suppressed under Tinker, Fraser, Hazelwood, or Morse. Schools should also have to show that (1) the student speaker had adequate prior notice that the speech was prohibited and (2) the actual punishment was reasonable.” Emily Gold Waldman, Regulating Student Speech: Suppression Versus Punishment, 85 Ind. L.J. 1113, 1113-1114 (2010).

5. All four of the Supreme Court’s student speech cases involved teenage students. Should the same standards apply for elementary school students? So far, federal courts have generally concluded that the answer is yes, but that application of those standards may play out differently in elementary schools. The Fifth Circuit, for instance, recently held that Tinker applies in elementary schools, but simultaneously observed that “some speech might be ‘materially and substantially disruptive’ to the work of a public elementary school, but not to a public high school” and that “an analysis of whether student speech infringes on the rights of others, including ‘the right to be let alone,’ may also look different in the elementary-school context.” See Morgan v. Swanson, 659 F.3d 359, 385-387 (5th Cir. 2011); see also Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (3d Cir. 2009) (applying Hazelwood to claim of kindergartner).

6. Remember that the entire student speech framework discussed above, and indeed throughout this chapter, applies only to public schools, which are state actors subject to the Constitution. In other words, a private school student whose school restricts her speech cannot bring a First Amendment claim against her school. Charter schools, because they are publicly funded and operate under charters from the state, are likely to be seen as state actors for purposes of students’ constitutional claims, although there have not been many such cases yet. See Maren Hulden, Note, Charting a Course to State Action: Charter Schools and Section 1983, 111 Colum. L. Rev. 1244 (2011) (arguing that charter schools should be seen as state actors for claims brought by students, but not for all claims brought by employees); see also Jay P. Heubert, Schools Without Rules? Charter Schools, Federal Disability Law, and the Paradoxes of Deregulation, 32 Harv. C.R.-C.L. L. Rev. 301 (1997).

PROBLEM

The West Hills School District is located in West Hills, a small city in the state of East Dakota, which falls within the Thirteenth Circuit Court of Appeals. (The691 Thirteenth Circuit is bound by Supreme Court precedent and treats all other decisions as potentially persuasive but not binding.) West Hills High School is the sole high school for the district.

Brandon Bonner is a 16-year-old high school junior at West Hills High School. After school officials suspected him of bringing marijuana to the junior-class picnic, the vice principal, Vince Vager, called him into his office and searched his backpack. After finding nothing there, Vice Principal Vager asked Brandon to turn his pockets inside out. Again, no marijuana appeared. Vager then asked him to remove his pants and, upon still seeing no sign of marijuana, told him that he was free to go.

Brandon was angry about what had occurred. His parents began pursuing a lawsuit against the school district, alleging that the search had violated Brandon’s Fourth Amendment right to be free from unreasonable searches, and word quickly spread among his classmates. An unofficial movement took hold among the student body in support of Brandon. One student, Andrew Abelson, created a T-shirt that stated “Team Brandon” on the front and “Keep your hands out of my pants” on the back, and then showed up at school wearing the T-shirt. The T-shirt engendered much laughter and discussion among other students. Another student, Kent Kramer, showed up at school the next day wearing a T-shirt with a marijuana leaf on the front and “SUPPORT BRANDON BONNER” on the back. This, too, led to much discussion from other students.

Vice Principal Vager was not happy. He called Andrew and Kent to his office and told them that while they were free to have their opinions about Brandon’s lawsuit, their shirts were disrespectful and disruptive and he would not stand for that. He told Andrew that if he wore the “Team Brandon” T-shirt to school again, he would be suspended. Similarly, he ordered Kent to either turn his marijuana leaf “SUPPORT BRANDON BONNER” T-shirt inside out or put on something different, telling him that otherwise he would have to leave school. Kent refused, and Vager ordered him to go home, stating that he was suspended for the rest of the day.

Andrew and Kent are now considering filing their own lawsuits against the West Hills School District. Assess the merits of their free speech claims.

B. SCHOOL AUTHORITY TO RESTRICT STUDENT SPEECH THAT IS HURTFUL TO OTHER MEMBERS OF THE SCHOOL COMMUNITY

Societal focus on youth bullying is at an all-time high, with all 50 states having passed antibullying laws in the past 15 years and numerous recent high-profile stories describing students who resorted to drastic action after feeling bullied or harassed. While such bullying often includes a physical component, sometimes it is purely verbal. What, then, are the free speech limitations on a school’s ability to police student speech that is hurtful to other members of the school692 community? What is the appropriate balance to strike between protecting student speakers and victims? With no Supreme Court case directly on point, the lower courts have drawn from different strands of the Court’s basic student speech framework to address this issue, sometimes reaching divergent results.

Saxe v. State College Area School District

240 F.3d 200 (3d Cir. 2000)

Alito, Circuit Judge:

The plaintiffs in this case challenge the constitutionality of a public school district’s “anti-harassment” policy, arguing that it violates the First Amendment’s guarantee of freedom of speech. The District Court, concluding that the policy prohibited no more speech than was already unlawful under federal and state anti-discrimination laws, held that the policy is constitutional and entered judgment for the school district. We reverse.

In August 1999, the State College Area School District (“SCASD”) adopted an Anti-Harassment Policy (“the Policy”). We will briefly review the most relevant portions here.

The Policy begins by setting forth its goal—“providing all students with a safe, secure, and nurturing school environment”—and noting that “disrespect among members of the school community is unacceptable behavior which threatens to disrupt the school environment and well being of the individual.” The second paragraph contains what appears to be the Policy’s operative definition of harassment:

Harassment means verbal or physical conduct based on one’s actual or perceived race, religion, color, national origin, gender, sexual orientation, disability, or other personal characteristics, and which has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.

The Policy continues by providing several examples of “harassment”:

Harassment can include any unwelcome verbal, written or physical conduct which offends, denigrates or belittles an individual because of any of the characteristics described above. Such conduct includes, but is not limited to, unsolicited derogatory remarks, jokes, demeaning comments or behaviors, slurs, mimicking, name calling, graffiti, innuendo, gestures, physical contact, stalking, threatening, bullying, extorting or the display or circulation of written material or pictures.

These examples are followed by a lengthy section captioned “Definitions,” which defines various types of prohibited harassment, including “Sexual harassment,” “Racial and color harassment,” “Harassment on the basis of religion,”693 “Harassment based on national origin,” “Disability harassment,” and “Other harassment” on the basis of characteristics such as “clothing, physical appearance, social skills, peer group, intellect, educational program, hobbies or values, etc.” The definitions state that harassment “can include unwelcome verbal, written or physical conduct directed at” the particular characteristic.

The Policy provides that “any harassment of a student by a member of the school community is a violation of this policy.” It establishes procedures for the reporting, informal mediation, and formal resolution of complaints. In addition, the Policy sets a list of punishments for harassment, “including but not limited to warning, exclusion, suspension, expulsion, transfer, termination, discharge…, training, education, or counseling.”

Plaintiff David Saxe is a member of the Pennsylvania State Board of Education and serves as an unpaid volunteer for SCASD. He is the legal guardian of both student-plaintiffs, who are enrolled in SCASD schools. In his Complaint, he alleged that

all Plaintiffs openly and sincerely identify themselves as Christians. They believe, and their religion teaches, that homosexuality is a sin. Plaintiffs further believe that they have a right to speak out about the sinful nature and harmful effects of homosexuality. Plaintiffs also feel compelled by their religion to speak out on other topics, especially moral issues.

They sought to have the Policy declared unconstitutionally vague and overbroad and its operation permanently enjoined.

The District Court dismissed the plaintiffs’ free speech claims based on its conclusion that “harassment,” as defined by federal and state anti-discrimination statutes, is not entitled to First Amendment protection. The Court rejected the plaintiffs’ characterization of the Policy as a “hate speech code,” holding instead that it merely prohibits harassment that is already unlawful under state and federal law.

We disagree with the District Court’s reasoning. There is no categorical “harassment exception” to the First Amendment’s free speech clause. Moreover, the SCASD Policy prohibits a substantial amount of speech that would not constitute actionable harassment under either federal or state law.

Because the District Court based its holding on a determination that the Policy simply replicated existing law, we begin by briefly reviewing the scope of the applicable anti-harassment statutes. At the federal level, discriminatory harassment in the public schools is governed primarily by two statutes. Title VI of the Civil Rights Act of 1964 provides that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from694 participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. §2000d. Title IX of the Education Amendments of 1972 further provides that “no person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.” 20 U.S.C. §1681(a). Although less often involved in harassment cases, the Rehabilitation Act of 1973, 29 U.S.C. §794, makes it unlawful for programs receiving federal assistance to discriminate on the basis of disability or age.

The federal courts have held that these statutes create a private right of action similar to that available under Title VII, which prohibits discrimination in the workplace. Most significantly for this case, the Supreme Court has recognized that a public school student may bring suit against a school under Title IX for so-called “hostile environment” harassment.

In 1999, in Davis v. Monroe County Board of Education, the Court held that Title IX permits a plaintiff to recover damages from a federally funded educational institution for certain cases of student-on-student sexual harassment. To recover in such a case,

a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.

This determination “‘depends on a constellation of surrounding circumstances, expectations, and relationships,’ including, but not limited to, the ages of the harasser and the victim, and the number of individuals involved.” Court stressed that “damages are not available for simple acts of teasing and name-calling among school children, even where these comments target differences in gender.” Rather, private damages actions against the school are limited to cases in which the school “acts with deliberate indifference to known acts of harassment,” and those acts have “a systemic effect on educational programs and activities.”

With this framework in mind, we now turn to the District Court’s assertion that “harassment has never been considered to be protected activity under the First Amendment.” The District Court’s categorical pronouncement exaggerates the current state of the case law in this area.

There is of course no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause. But there is also no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another’s race or national origin or that denigrate religious beliefs. When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications.

695

In any event, we need not map the precise boundary between permissible anti-discrimination legislation and impermissible restrictions on First Amendment rights today. Assuming for present purposes that the federal anti-discrimination laws are constitutional in all of their applications to pure speech, we note that the SCASD Policy’s reach is considerably broader.

For one thing, the Policy prohibits harassment based on personal characteristics that are not protected under federal law. Titles VI and IX, taken together with the other relevant federal statutes, cover only harassment based on sex, race, color, national origin, age and disability. The Policy, in contrast, is much broader, reaching, at the extreme, a catch-all category of “other personal characteristics” (which, the Policy states, includes things like “clothing,” “appearance,” “hobbies and values,” and “social skills”). Insofar as the policy attempts to prevent students from making negative comments about each others’ “appearance,” “clothing,” and “social skills,” it may be brave, futile, or merely silly. But attempting to proscribe negative comments about “values,” as that term is commonly used today, is something else altogether. By prohibiting disparaging speech directed at a person’s “values,” the Policy strikes at the heart of moral and political discourse—the lifeblood of constitutional self government (and democratic education) and the core concern of the First Amendment. That speech about “values” may offend is not cause for its prohibition, but rather the reason for its protection: “a principal ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’” No court or legislature has ever suggested that unwelcome speech directed at another’s “values” may be prohibited under the rubric of anti-discrimination.

Moreover, the Policy’s prohibition extends beyond harassment that objectively denies a student equal access to a school’s education resources. Even on a narrow reading, the Policy unequivocally prohibits any verbal or physical conduct that is based on an enumerated personal characteristic and that “has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile or offensive environment.” Unlike federal anti-harassment law, which imposes liability only when harassment has “a systemic effect on educational programs and activities,” Davis, the Policy extends to speech that merely has the “purpose” of harassing another. This formulation, by focusing on the speaker’s motive rather than the effect of speech on the learning environment, appears to sweep in those “simple acts of teasing and name-calling” that the Davis Court explicitly held were insufficient for liability.

III

A regulation is unconstitutional on its face on overbreadth grounds where there is a “a likelihood that the statute’s very existence will inhibit free expression” by “inhibiting the speech of third parties who are not before the Court.”696 To render a law unconstitutional, the overbreadth must be “not only real but substantial in relation to the statute’s plainly legitimate sweep.”

As an initial matter, the Policy punishes not only speech that actually causes disruption, but also speech that merely intends to do so: by its terms, it covers speech “which has the purpose or effect of” interfering with educational performance or creating a hostile environment. This ignores Tinker’s requirement that a school must reasonably believe that speech will cause actual, material disruption before prohibiting it.

In addition, even if the “purpose” component is ignored, we do not believe that prohibited “harassment,” as defined by the Policy, necessarily rises to the level of a substantial disruption under Tinker. We agree that the Policy’s first prong, which prohibits speech that would “substantially interfere with a student’s educational performance,” may satisfy the Tinker standard. The primary function of a public school is to educate its students; conduct that substantially interferes with the mission is, almost by definition, disruptive to the school environment.

The Policy’s second criterion, however—which prohibits speech that “creates an intimidating, hostile or offensive environment”—poses a more difficult problem. There are several possible grounds on which SCASD could attempt to justify this prohibition. First, SCASD could argue that it has an interest in avoiding liability for harassment under Franklin and Davis. However, because the Policy prohibits substantially more conduct than would give rise to liability under these cases, this justification is unavailing.

Second, SCASD could argue that speech creating a “hostile environment” may be banned because it “intrudes upon…the rights of other students.” The precise scope of Tinker’s “interference with the rights of others” language is unclear; at least one court has opined that it covers only independently tortious speech like libel, slander or intentional infliction of emotional distress. In any case, it is certainly not enough that the speech is merely offensive to some listener. Because the Policy’s “hostile environment” prong does not, on its face, require any threshold showing of severity or pervasiveness, it could conceivably be applied to cover any speech about some enumerated personal characteristics the content of which offends someone.⁴

Finally, SCASD might argue that the “hostile environment” prohibition is required to maintain an orderly and non-disruptive educational environment. However, as Tinker made clear, the “undifferentiated fear or apprehension of disturbance” is not enough to justify a restriction on student speech. Although SCASD correctly asserts that it has a compelling interest in promoting an educational environment that is safe and conducive to learning, it fails to provide any particularized reason as to why it anticipates substantial disruption from the broad swath of student speech prohibited under the Policy.

697

The Policy, then, appears to cover substantially more speech than could be prohibited under Tinker’s substantial disruption test. Accordingly, we hold that the Policy is unconstitutionally overbroad.

For the foregoing reasons, the judgment of the District Court is reversed.

NOTES AND QUESTIONS

1. Note the author of Saxe. Do you see echoes of Saxe in Justice Alito’s Morse concurrence?

2. Why did Justice Alito conclude that State College Area School District’s Anti-Harassment Policy was unconstitutional? How would you amend it to respond to his concerns? Do you agree that such changes are necessary?

3. Note Saxe’s discussion of the Supreme Court’s Davis standard for when public schools can be held liable under Title IX for failing to protect students from peer harassment. This standard plays an important role in the analysis of when schools can restrict students’ hurtful speech, for two reasons. First, it sets the threshold for when schools must restrict such speech. (Remember, however, that not all severe peer harassment is prohibited under federal law. As the Saxe court explains, the relevant federal statutes cover only harassment based on sex, race, color, national origin, age, and disability. The Davis standard regarding how severe and pervasive the harassment needs to be, although articulated in the Title IX context, has been applied across these categories. In the meantime, some states have enacted statutes providing broader protections against harassment, such as by prohibiting harassment on the basis of any personal characteristic.) Second, as the Saxe court noted, the Davis standard arguably informs the question of when schools can restrict such speech under Tinker, by providing the substantive content of a “right” that certain speech might invade. One open question is whether, to the extent that states (or even the federal government) provide broader protection against harassment, that will correspondingly provide schools with broader power to act under Tinker’s invasion of rights prong. Additionally, of course, schools retain independent authority to restrict student speech under Tinker’s material disruption prong. For further discussion of this topic, see, e.g., Elizabeth M. Jaffe & Robert J. D’Agostino, Bullying in Public Schools: The Intersection Between the Student’s Free Speech Rights and the School’s Duty to Protect, 62 Mercer L. Rev. 407 (2011).

4. Compare the Saxe approach to the approaches taken by the majority and dissent in the following case. Which do you ultimately find most persuasive?

Harper v. Poway Unified School District

445 F.3d 1166 (9th Cir. 2006)

Reinhardt, Circuit Judge:

May a public high school prohibit students from wearing T-shirts with messages that condemn and denigrate other students on the basis of their sexual orientation? Appellant in this action is a sophomore at Poway High School who698 was ordered not to wear a T-shirt to school that read, “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” handwritten on the front, and “HOMOSEXUALITY IS SHAMEFUL” handwritten on the back. He appeals the district court’s order denying his motion for a preliminary injunction. Because he is not likely to succeed on the merits, we affirm the district court’s order.

Poway High School has had a history of conflict among its students over issues of sexual orientation. In 2003, the School permitted a student group called the Gay-Straight Alliance to hold a “Day of Silence” at the School which, in the words of an Assistant Principal, is intended to “teach tolerance of others, particularly those of a different sexual orientation.”⁵ During the days surrounding the 2003 “Day of Silence,”⁶ a series of incidents and altercations occurred on the school campus as a result of anti-homosexual comments that were made by students. One such confrontation required the Principal to separate students physically. According to David LeMaster, a teacher at Poway, several students were suspended as a result of these conflicts. Moreover, a week or so after the “Day of Silence,” a group of heterosexual students informally organized a “Straight-Pride Day,” during which they wore T-shirts which displayed derogatory remarks about homosexuals. According to Assistant Principal Lynell Antrim, some students were asked to remove the shirts and did so, while others “had an altercation and were suspended for their actions.”

Because of these conflicts in 2003, when the Gay-Straight Alliance sought to hold another “Day of Silence” in 2004, the School required the organization to consult with the Principal to “problem solve” and find ways to reduce tensions and potential altercations. On April 21, 2004, the date of the 2004 “Day of Silence,” appellant Tyler Chase Harper wore a T-shirt to school on which “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED,” was handwritten on the front and “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’” was handwritten on the back. There is no evidence in the record that any school staff saw Harper’s T-shirt on that day.

The next day, April 22, 2004, Harper wore the same T-shirt to school, except that the front of the shirt read “BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED,” while the back retained the same message as before, “HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27.’” LeMaster, Harper’s second period teacher, noticed Harper’s shirt and observed “several students off-task talking about” the shirt. LeMaster, recalling the altercations that erupted as a result of “anti-homosexual speech” during the previous year’s “Day of Silence,” explained to Harper that he believed that the shirt was “inflammatory,” that it violated the School’s dress code, and that it “created a negative and hostile working environment for others.” When Harper refused to699 remove his shirt and asked to speak to an administrator, LeMaster gave him a dress code violation card to take to the front office.

When Harper arrived at the front office, he met Assistant Principal Antrim. She told Harper that the “Day of Silence” was “not about the school promoting homosexuality but rather it was a student activity trying to raise other students’ awareness regarding tolerance in their judgement [sic] of others.” Antrim believed that Harper’s shirt “was inflammatory under the circumstances and could cause disruption in the educational setting.” Like LeMaster, she also recalled the altercations that had arisen as a result of anti-homosexual speech one year prior. According to her affidavit, she “discussed [with Harper] ways that he and students of his faith could bring a positive light onto this issue without the condemnation that he displayed on his shirt.” Harper was informed that if he removed the shirt he could return to class.

When Harper again refused to remove his shirt, the Principal, Scott Fisher, spoke with him, explaining his concern that the shirt was “inflammatory” and that it was the School’s “intent to avoid physical conflict on campus.” Fisher also explained to Harper that it was not healthy for students to be addressed in such a derogatory manner. According to Fisher, Harper informed him that he had already been “confronted by a group of students on campus” and was “involved in a tense verbal conversation” earlier that morning. The Principal eventually decided that Harper could not wear his shirt on campus, a decision that, he asserts, was influenced by “the fact that during the previous year, there was tension on campus surrounding the Day of Silence between certain gay and straight students.”⁷ Fisher proposed some alternatives to wearing the shirt, all of which Harper turned down. Harper asked two times to be suspended. Fisher “told him that [he] did not want him suspended from school, nor did [he] want him to have something in his disciplinary record because of a stance he felt strongly about.” Instead, Fisher told Harper that he would be required to remain in the front office for the remainder of the school day.

Harper spent the rest of the day in the school conference room doing his homework.

On June 2, 2004, Harper filed a lawsuit in district court against Poway Unified School District and certain named individuals in their individual and official capacities, [alleging, among other things,] violations of his right to free speech. On June 22, 2004, the School filed a motion to dismiss, and on July 12, 2004, Harper filed a motion for a preliminary injunction seeking to enjoin the school from “continuing [its] violation of the constitutional rights of Plaintiff Tyler Chase Harper.”

For a district court to grant a preliminary injunction, the moving party must demonstrate either “(1) a combination of probable success on the merits and the700 possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.”

Freedom of Speech Claim

The district court concluded that Harper failed to demonstrate a likelihood of success on the merits of his claim that the School violated his First Amendment right to free speech because, under Tinker v. Des Moines Indep. Cmty. Sch. Dist., the evidence in the record was sufficient to permit the school officials to “reasonably…forecast substantial disruption of or material interference with school activities.” We affirm the district court’s denial of the requested preliminary injunction. Although we, like the district court, rely on Tinker, we rely on a different provision—that schools may prohibit speech that “intrudes upon…the rights of other students.”

We conclude that Harper’s wearing of his T-shirt “collides with the rights of other students” in the most fundamental way. Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses. As Tinker clearly states, students have the right to “be secure and to be let alone.” Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society. The “right to be let alone” has been recognized by the Supreme Court, of course, as “‘the most comprehensive of rights and the right most valued by civilized men.’” Because minors are subject to mandatory attendance requirements, the Court has emphasized “the obvious concern on the part of parents and school authorities acting in loco parentis, to protect children—especially in a captive audience.” Although name-calling is ordinarily protected outside the school context, “students cannot hide behind the First Amendment to protect their ‘right’ to abuse and intimidate other students at school.”

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development. Indeed, studies demonstrate that “academic underachievement, truancy, and dropout are prevalent among homosexual youth and are the probable consequences of violence and verbal and physical abuse at school.” One study has found that among teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school. Another study confirmed that gay students had difficulty concentrating in school and feared for their safety as a result of peer harassment, and that verbal abuse led some gay students to skip school and others to drop out altogether. In short, it is well established that attacks on students on the basis of their sexual orientation are harmful not701 only to the students’ health and welfare, but also to their educational performance and their ultimate potential for success in life.

Although we hold that the School’s restriction of Harper’s right to carry messages on his T-shirt was permissible under Tinker, we reaffirm the importance of preserving student speech about controversial issues generally and protecting the bedrock principle that students “may not be confined to the expression of those sentiments that are officially approved.” Accordingly, we limit our holding to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.⁸

Under the circumstances present here, we conclude that the School’s actions did not extend beyond the scope of the restrictions permitted by Tinker, and that the district court did not abuse its discretion in finding that Harper failed to demonstrate a likelihood of success on the merits of his free speech claim.

Kozinski, Circuit Judge, dissenting:

While I find this a difficult and troubling case, I can agree with neither the majority’s rationale nor its conclusion.

The record reveals quite clearly that Harper’s t-shirt was not an out-of-the-blue affront to fellow students who were minding their own business. Rather, Harper wore his t-shirt in response to the Day of Silence, a political activity that was sponsored or at the very least tolerated by school authorities. The Day of Silence is a protest sponsored by the Gay, Lesbian and Straight Education Network (GLSEN). The point of this protest, as I understand it, is to promote tolerance toward all students, regardless of their sexual orientation.

Tolerance is a civic virtue, but not one practiced by all members of our society toward all others. This may be unfortunate, but it is a reality we must accept in a pluralistic society. Specifically, tolerance toward homosexuality and homosexual conduct is anathema to those who believe that intimate relations among people of the same sex are immoral or sinful. So long as the subject is kept out of the school environment, these differences of opinion need not clash. But a visible and highly publicized political action by those on one side of the issue will provoke those on the other side to express a different point of view, if only to avoid the implication that they agree.

Given the history of violent confrontation between those who support the Day of Silence and those who oppose it, the school authorities may have been justified in banning the subject altogether by denying both sides permission to702 express their views during the school day. I find it far more problematic—and more than a little ironic—to try to solve the problem of violent confrontations by gagging only those who oppose the Day of Silence and the point of view it represents.

Tinker does contain an additional ground for banning student speech, namely where it is an “invasion of the rights of others.” The school authorities suggest that Harper’s t-shirt violates California Education Code §201(a), which provides that “all pupils have the right to participate fully in the educational process, free from discrimination and harassment.” Defendants cite no California case holding that the passive display by one student of a message another student finds offensive violates this provision, and I am reluctant to so conclude on my own. The interaction between harassment law and the First Amendment is a difficult and unsettled one because much of what harassment law seeks to prohibit, the First Amendment seems to protect.

Harassment law might be reconcilable with the First Amendment, if it is limited to situations where the speech is so severe and pervasive as to be tantamount to conduct. It is quite clear that Harper’s lone message was not sufficiently severe and pervasive. Rather, it seems more like the “simple acts of teasing and name-calling,” described by the Supreme Court as non-actionable in Davis. The “rights of others” language in Tinker can only refer to traditional rights, such as those against assault, defamation, invasion of privacy, extortion and blackmail, whose interplay with the First Amendment is well established. Surely, this language is not meant to give state legislatures the power to define the First Amendment rights of students out of existence by giving others the right not to hear that speech. Otherwise, a state legislature could effectively overrule Tinker by granting students an affirmative right not to be offended. To the extent that state law purports to prohibit such language in the school context, it is patently unconstitutional.

Nor can I join my colleagues in concluding that Harper’s t-shirt violated the rights of other students by disparaging their homosexual status. As I understand the opinion, my colleagues are saying that messages such as Harper’s are so offensive and demeaning that they interfere with the ability of homosexual students to partake of the educational environment. This is not a position briefed or argued by any of the parties, and no one introduced any evidence in support of, or opposition to, this proposition.

I have considerable difficulty understanding the source and sweep of the novel doctrine the majority announces today. Not all statements that demean other students can be banned by schools; the majority is very clear about this. The new doctrine applies only to statements that demean students based on their “minority status such as race, religion, and sexual orientation.” Is this a right created by state law? By federal law? By common law? And if interference with the learning process is the keystone to the new right, how come it’s limited to those characteristics that are associated with minority status? Students may well have their self-esteem bruised by being demeaned for being white or Christian, or having bad acne or weight problems, or being poor or stupid or any one of the infinite number of characteristics that will not qualify them for minority status. Under the rule the majority announces today, schools would be able to ban t-shirts with pictures of Mohammed wearing a bomb turban but not those with703 pictures of a Crucifix dipped in urine—yet Muslim and Christian children, respectively, may have their learning equally disrupted.

Even the concept of minority status is not free from doubt. In defining what is a minority—and hence protected—do we look to the national community, the state, the locality or the school? In a school that has 60 percent black students and 40 percent white students, will the school be able to ban t-shirts with anti-black racist messages but not those with anti-white racist messages, or vice versa? Must a Salt Lake City high school prohibit or permit Big Love t-shirts?

And at what level of generality do we define a minority group? If the Pope speaks out against gay marriage, can gay students wear to school t-shirts saying “Catholics Are Bigots,” or will they be demeaning the core characteristic of a religious minority? And, are Catholics part of a monolithic Christian majority, or a minority sect that has endured centuries of discrimination in America?

Finally, I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning. The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future. Respectfully, I cannot go along.

NOTES AND QUESTIONS

1. Harper was the first circuit court decision (and remains the only such decision) to uphold a speech restriction solely under Tinker’s invasion of rights prong. Do you agree with how the Harper majority deployed this prong? What do you make of its express limitation of its holding to remarks “directed at students’ minority status such as race, religion, and sexual orientation,” and its explanation in footnote 8 for why it was taking that course?

2. The facts of Harper illustrate the double-bind that schools can face when deciding how to respond to students’ hurtful speech. At the same time that the school district was being sued by Harper over the prohibition of its T-shirt, it was also being sued (as described in footnote 7) under California law by two gay former students who contended that the school had failed to protect them from other students’ antigay harassment. Additionally, as discussed above, if hurtful speech rises to the level of severe harassment on the basis of a characteristic that is protected under federal law—such as gender or race—then a school may face federal liability for failing to act.

Where does harassment on the basis of sexual orientation fit in for purposes of federal law, given that sexual orientation is not listed as a protected characteristic under the federal civil rights statutes relating to education? On October 26, 2010, the Office of Civil Rights within the United States Department of Education issued a “Dear Colleague” letter providing guidance to school districts, stating that

[a]lthough Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT)704 students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also…be subjected to forms of sex discrimination prohibited under Title IX.

The letter noted, for example, that harassing conduct is sometimes based on a student’s failure to act in conformance with gender expectations, which qualifies as gender-based harassment covered by Title IX.

3. The student in Harper filed a petition for a writ of certiorari to the Supreme Court, which ended up vacating the Ninth Circuit’s affirmance of the district court’s denial of the preliminary injunction, on grounds that the district court had subsequently dismissed the case on summary judgment, rendering the Ninth Circuit decision moot. 549 U.S. 1262 (2007). As such, the Supreme Court made no substantive ruling on the merits of the case. Harper’s younger sister, who was later added as a plaintiff to the case, sought to reinstate the case and moved for reconsideration. By this time, Morse had been decided, and the district court asked her to file a supplemental brief addressing Morse’s impact on the case. The court ultimately concluded that Morse did not undercut the earlier reasoning in Harper and ruled against the motion for reconsideration. Harper v. Poway Unified Sch. Dist., 545 F. Supp. 2d 1072 (S.D. Cal. 2008). If you represented the plaintiff here, what arguments would you make that Harper does not survive Morse? If you represented the defendant school, what arguments would you make that Harper and Morse are reconcilable?

The following case was decided in Morse’s aftermath, and the court explicitly teased out certain inferences from Morse in reaching its decision. Do you find its interpretation, and resulting approach, convincing?

Nuxoll v. Indian Prairie School District

523 F.3d 668 (7th Cir. 2008)

Posner, Circuit Judge.

The plaintiff, a sophomore at Neuqua Valley High School, a large public high school in Naperville, Illinois, has brought suit against the school district and school officials contending that they are violating his right to free speech by forbidding him to make negative comments at school about homosexuality. He moved for a preliminary injunction, which was denied, and he appeals the denial. The parties tacitly agree that he is entitled to a preliminary injunction if he has shown a reasonable probability that his right to free speech is being violated.

The plaintiff is one of the students who disapprove of homosexuality. Some of them participate in a “Day of Truth” (see www.dayoftruth.org (visited Apr. 5, 2008)) held on the first school day after the “Day of Silence.” They recommend that supporters wear a T-shirt that reads “day of truth” and “The Truth cannot be silenced.” Two years ago a coplaintiff (who has since graduated and as a result is no longer seeking injunctive relief) wore a shirt that read “My Day of Silence, Straight Alliance” on the front and “Be Happy, Not Gay” on the back. A school official had the phrase “Not Gay” inked out. Last year neither plaintiff wore a705 shirt that contained the phrase, or otherwise tried to counter the Day of Silence, for fear of being disciplined.

None of the slogans mentioned so far has been banned by the school authorities except “Be Happy, Not Gay.” The school bases the ban on a school rule forbidding “derogatory comments,” oral or written, “that refer to race, ethnicity, religion, gender, sexual orientation, or disability.” The school deems “Be Happy, Not Gay” a derogatory comment on a particular sexual orientation. The school’s position is that members of a listed group may comment favorably about their own group but may not make a derogatory comment about another group. The rule does not apply to comments made outside of school.

The plaintiff challenges the rule, as well as its application in this case. He believes that the First Amendment entitles him to make, whether in school or out, any negative comments he wants about the members of a listed group, including homosexuals (a group defined of course by sexual orientation), provided they are not inflammatory words—that is, not “fighting words,” words likely to provoke a violent reaction and hence a breach of the peace. The Supreme Court has placed fighting words outside the protection of the First Amendment. [The plaintiff] concedes that he could not inscribe “homosexuals go to Hell” on his T-shirt because those are fighting words and so can be prohibited despite their expressive content and arguable theological support.

The concession is prudent. A heavy federal constitutional hand on the regulation of student speech by school authorities would make little sense. The contribution that kids can make to the marketplace in ideas and opinions is modest and a school’s countervailing interest in protecting its students from offensive speech by their classmates is undeniable. Granted, because 18-year-olds can now vote, high-school students should not be “raised in an intellectual bubble,” which would be the effect of forbidding all discussion of public issues by such students. But Neuqua Valley High School has not tried to do that. It has prohibited only (1) derogatory comments on (2) unalterable or otherwise deeply rooted personal characteristics about which most people, including—perhaps especially including—adolescent schoolchildren, are highly sensitive. People are easily upset by comments about their race, sex, etc., including their sexual orientation, because for most people these are major components of their personal identity—none more so than a sexual orientation that deviates from the norm. Such comments can strike a person at the core of his being.

There is evidence, though it is suggestive rather than conclusive, that adolescent students subjected to derogatory comments about such characteristics may find it even harder than usual to concentrate on their studies and perform up to the school’s expectations. Neuqua Valley High School is huge—4200 students—and the potential for wounding speech concerning the personal characteristics listed in the school’s rule is great. Nor, on the benefits side of the First Amendment balance, is uninhibited high-school student hallway debate over sexuality—whether carried out in the form of dueling T-shirts, dueling banners, dueling pamphlets, annotated Bibles, or soapbox oratory—an essential preparation for the exercise of the franchise.

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A judicial policy of hands off (within reason) school regulation of student speech has much to recommend it. On the one hand, judges are incompetent to tell school authorities how to run schools in a way that will preserve an atmosphere conducive to learning; on the other hand the suppression of adolescents’ freedom to debate sexuality is not one of the nation’s pressing problems, or a problem that can be solved by aggressive federal judicial intervention. A far more urgent problem, the high dropout rates in many public schools, will not be solved by First Amendment free-for-alls, though happily the drop-out rate at Neuqua Valley High School, serving as it does the wealthy city of Naperville, is negligible.

It may not be obvious to an outsider how a T-shirt on which is written the slogan “Be Happy, Not Gay” will poison the school atmosphere, but the outsider is—an outsider. And of course the plaintiff doesn’t want to stop there. He wants to wear T-shirts that make more emphatically negative comments about homosexuality, provided only that the comments do not cross the line that separates nonbelligerent negative comments from fighting words, wherever that line may be. He also wants to distribute Bibles to students to provide documentary support for his views about homosexuality. We foresee a deterioration in the school’s ability to educate its students if negative comments on homosexuality by students like Nuxoll who believe that the Bible is the word of God to be interpreted literally incite negative comments on the Bible by students who believe either that there is no God or that the Bible should be interpreted figuratively. Mutual respect and forbearance enforced by the school may well be essential to the maintenance of a minimally decorous atmosphere for learning.

But we cannot accept the defendants’ argument that the rule is valid because all it does is protect the “rights” of the students against whom derogatory comments are directed. Of course a school can—often it must—protect students from the invasion of their legal rights by other students. But people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life. There is no indication that the negative comments that the plaintiff wants to make about homosexuals or homosexuality names or otherwise targets an individual or is defamatory.

The school is on stronger ground in arguing that the rule strikes a reasonable balance between the competing interests—free speech and ordered learning—at stake in the case. But the plaintiff tells us that the Supreme Court has placed a thumb on the balance—that it has held that a school unable to prove that student speech will cause “disorder or disturbance,” can ban such speech only if it either is lewd, Fraser, or advocates the consumption of illegal drugs. Morse.

But what is “substantial disruption”? Must it amount to “disorder or disturbance”? Must classwork be disrupted and if so how severely? We know from Morse that the Supreme Court will let a school ban speech—even speech outside the school premises—that encourages the use of illegal drugs, without the school’s having to prove a causal relation between the speech and drug use. We know too that avoiding violence, if that is what “disorder or disturbance” connotes, is not a school’s only substantial concern. Violence was not the issue in Morse, or in Fraser, the lewd-speech case. In fact one of the concerns expressed by707 the Supreme Court in Morse was with the psychological effects of drugs. Imagine the psychological effects if the plaintiff wore a T-shirt on which was written “blacks have lower IQs than whites” or “a woman’s place is in the home.”

From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school—symptoms therefore of substantial disruption—the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test. It seeks to maintain a civilized school environment conducive to learning, and it does so in an even-handed way. It is not as if the school forbade only derogatory comments that refer, say, to religion, a prohibition that would signal a belief that being religious merits special protection. The list of protected characteristics in the rule appears to cover the full spectrum of highly sensitive personal-identity characteristics. And the ban on derogatory words is general. Nuxoll can’t say “homosexuals are going to Hell” (though he can advocate heterosexuality on religious grounds) and it cannot be said back to him that “homophobes are closeted homosexuals.” The school’s rule bans “derogatory comments that refer to race, ethnicity, religion, gender, sexual orientation, or disability.”

This particular restriction, it is true, would not wash if it were being imposed on adults, because they can handle such remarks better than kids can and because adult debates on social issues are more valuable than debates among children. It probably would not wash if it were extended to students when they are outside of the school, where students who would be hurt by the remarks could avoid exposure to them. It would not wash if the school understood “derogatory comments” to embrace any statement that could be construed by the very sensitive as critical of one of the protected group identities. (That may, as we’ll see, be a problem with the school’s application of its rule to the facts of this case.) But high-school students are not adults, schools are not public meeting halls, children are in school to be taught by adults rather than to practice attacking each other with wounding words, and school authorities have a protective relationship and responsibility to all the students. Because of that relationship and responsibility, we are concerned that if the rule is invalidated the school will be placed on a razor’s edge, where if it bans offensive comments it is sued for violating free speech and if it fails to protect students from offensive comments by other students it is sued for violating laws against harassment.

So the plaintiff is not entitled to a preliminary injunction against the rule. The most he is entitled to is an injunction that would permit him to stencil “Be Happy, Not Gay” on his T-shirt on the “Day of Truth” because forcing deletion of “Not Gay” stretches the school’s derogatory-comments rule too far.

“Be Happy, Not Gay” is only tepidly negative; “derogatory” or “demeaning” seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says “Be Happy, Not Gay” would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang708 a prohibition of the exercise of a student’s free speech. We are therefore constrained to reverse the district court’s order with directions to enter forthwith (the “Day of Truth” is scheduled for April 28) a preliminary injunction limited however to the application of the school’s rule to a T-shirt that recites “Be Happy, Not Gay.” The school has failed to justify the ban of that legend, though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light.

NOTES AND QUESTIONS

1. The Nuxoll saga did not end with this decision. After the district court entered the preliminary injunction in Nuxoll’s favor, as instructed by the Seventh Circuit, pretrial discovery ensued, and the court ultimately awarded $25.00 in damages to Nuxoll and a fellow student (who had earlier graduated) for the infringement of their constitutional rights. The district court later entered a permanent injunction that ran in favor of any plaintiff who wished to display the “Be Happy, Not Gay” slogan on other clothing or personal items. The Seventh Circuit affirmed the injunction. Zamecnik & Nuxoll v. Indian Prairie Sch. Dist., 636 F.3d 874 (7th Cir. 2011).

2. The Nuxoll court upheld the school prohibition on derogatory comments, but nonetheless ruled in Nuxoll’s favor on grounds that his T-shirt was only “tepidly negative.” Do you agree? Emily Gold Waldman proposes a related, though not identical, approach:

Perhaps most helpfully, Morse points toward a useful distinction between student speech that identifies particular students for attack, and student speech that is primarily commenting on a political, social, or religious issue. Building on that distinction, I argue that restrictions as to the first category should generally be constitutional, just as restrictions on speech advocating illegal drug use now are under Morse. Restrictions as to the second category, by contrast, should trigger Tinker, and be presumptively unconstitutional unless there is a real likelihood of substantial disruption to at least one other student’s educational performance. In further explicating and applying this “substantial disruption” standard, courts should be guided by Morse’s recognition that protection of students’ expression of political, social, and religious opinions and their psychological well-being are both important interests. This, in turn, suggests that when it comes to speech like Harper’s and Nuxoll’s T-shirts, a carefully-drawn factual analysis that balances these considerations is the best approach.

Emily Gold Waldman, A Post-Morse Framework for Students’ Potentially Hurtful Speech (Religious and Otherwise), 37 J.L. & Educ. 463, 502-503 (2008). Do you find this convincing? How would this approach play out as applied to the speech in Harper and Nuxoll?

3. All three of the above cases involved student speech that was religiously motivated. Should this affect the analysis? Most courts have interpreted such cases as primarily about speech, and to the extent the student speakers have argued that the restriction of their speech violated the Establishment or Free Exercise Clause, those arguments have been rejected. See, e.g., Harper, 445 F.3d 1186-1191; see also Kristi L. Bowman, Public School Students’ Religious Speech and709 Viewpoint Discrimination, 220 W. Va. L. Rev. 187 (2007); John E. Taylor, Why Student Religious Speech Is Speech, 110 W. Va. L. Rev. 223 (2007) (arguing that the Free Speech Clause has been the “workhorse” in the protection of student religious speech, and that this is appropriate).

Increasingly, the debate over how schools can and should respond to hurtful student speech is playing out over speech—particularly digital speech—that originates off campus. Here, the rhetoric is often phrased in even more highly charged, personal terms. But questions about how schools should treat such off-campus speech are intermingled, of course, with questions about whether schools have any authority over it in the first place. The next section explores how courts are analyzing this question.

C. SCHOOL AUTHORITY OVER STUDENTS’ OFF-CAMPUS SPEECH

As of this casebook’s writing, probably the most hotly debated issue in the student speech universe is the extent to which schools can regulate students’ off-campus speech. To be sure, this question existed long before the rise of digital speech. But the ease and prevalence of digital speech, and the way in which it undermines any notion of a strict geographical on-campus/off-campus divide, has brought this issue to the forefront. The Supreme Court is very likely to take up the question of schools’ authority over student speech that originates off campus in the near future. In the meantime, however, the lower courts have had to work with the limited guidance provided by Tinker, Fraser, Hazelwood, and Morse. As you will see, the circuits that have addressed the issue seem to be moving toward a rough consensus—that schools can restrict students’ off-campus speech when it is likely to cause a substantial disruption at school—but they have articulated and applied this standard in varying ways. You may also be struck by the fact that a surprising number of these cases involve one particular type of speech: student hostility directed at teachers and principals.

Doninger v. Niehoff

527 F.3d 41 (2d Cir. 2008)

Livingston, Circuit Judge:

Plaintiff-Appellant Lauren Doninger (“Doninger”) appeals from the August 31, 2007 order of the United States District Court for the District of Connecticut (Kravitz, J.) denying her motion for a preliminary injunction. Doninger sued Defendants-Appellees Karissa Niehoff and Paula Schwartz, respectively the principal of Lewis Mills High School (“LMHS”) and the superintendent of the district in which LMHS is located, when her daughter, Avery Doninger (“Avery”), was disqualified from running for Senior Class710 Secretary after she posted a vulgar and misleading message about the supposed cancellation of an upcoming school event on an independently operated, publicly accessible web log (or “blog”). Doninger, alleging principally a violation of her daughter’s First Amendment rights, moved for a preliminary injunction voiding the election for Senior Class Secretary and ordering the school either to hold a new election in which Avery would be allowed to participate or to grant Avery the same title, honors, and obligations as the student elected to the position, including the privilege of speaking as a class officer at graduation. The district court denied the motion, concluding that Doninger had failed to show a sufficient likelihood of success on the merits. Because Avery’s blog post created a foreseeable risk of substantial disruption at LMHS, we conclude that the district court did not abuse its discretion.

Background

LMHS is a public high school located in Burlington, Connecticut. At the time of the events recounted here, Avery Doninger was a junior at LMHS. She served on the Student Council and was also the Junior Class Secretary.

This case arises out of a dispute between the school administration and a group of Student Council members at LMHS, including Avery, over the scheduling of an event called “Jamfest,” an annual battle-of-the-bands concert that these Student Council members helped to plan. The 2007 Jamfest, which had been twice postponed because of delays in the opening of LMHS’s new auditorium, was scheduled for Saturday, April 28, in this newly constructed venue. Shortly before the event, however, Avery and her fellow students learned that David Miller, the teacher responsible for operating the auditorium’s sound and lighting equipment, was unable to attend on that date. The students proposed that LMHS hire a professional to run the equipment or that a parent supervise student technicians, so that Jamfest could still take place on April 28 in the auditorium. At a Student Council meeting on April 24, however, the students were advised that it would not be possible to hold the event in the auditorium without Miller, so that either the date or the location of the event would need to be changed.

This announcement distressed the Student Council members responsible for coordinating preparations, for they believed there were few dates remaining to reschedule Jamfest before the end of the school year. The students were also concerned that changing the date of the event for a third time might cause some of the bands to drop out.

Four Student Council members, including Avery, decided to take action by alerting the broader community to the Jamfest situation and enlisting help in persuading school officials to let Jamfest take place in the auditorium as scheduled. The four students met at the school’s computer lab that morning and accessed one of their fathers’ email account. They drafted a message to be sent to a large number of email addresses in the account’s address book, as well as to additional names that Avery provided. The message stated, in substance, that the administration had decided that the Student Council could not hold Jamfest in the auditorium because Miller was unavailable. It requested711 recipients to contact Paula Schwartz, the district superintendent, to urge that Jamfest be held as scheduled, as well as to forward the email “to as many people as you can.”

Both Schwartz and Niehoff received an influx of telephone calls and emails from people expressing concern about Jamfest. Niehoff, who was away from her office for a planned in-service training day, was called back by Schwartz as a result. Later that day, Niehoff encountered Avery in the hallway at LMHS. Avery claimed that Niehoff told her that Schwartz was very upset “and that[,] as a result, Jamfest had been cancelled.” The district court found otherwise, however, crediting Niehoff’s testimony denying that she ever told Avery the event would not be held.

According to Niehoff, she advised Avery that she was disappointed the Student Council members had resorted to a mass email rather than coming to her or to Schwartz to resolve the issue. She testified that class officers are expected to work cooperatively with their faculty advisor and with the administration in carrying out Student Council objectives. They are charged, in addition, with “demonstrat[ing] qualities of good citizenship at all times.” The district court found that Niehoff discussed these responsibilities with Avery in their conversation on April 24. She told Avery that the email contained inaccurate information because Niehoff was, in fact, amenable to rescheduling Jamfest so it could be held in the new auditorium. Niehoff asked Avery to work with her fellow students to send out a corrective email. According to Niehoff, Avery agreed to do so.

That night, however, Avery posted a message on her publicly accessible blog, which was hosted by livejournal.com, a website unaffiliated with LMHS. The blog post began as follows:

jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basically we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. and here is the letter we sent out to parents.

The post then reproduced the email that the Student Council members sent that morning. The post continued:

And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.—

Avery then reproduced an email that her mother had sent to Schwartz earlier in the day concerning the dispute.

Avery testified before the district court that “im down” meant that she approved of the idea of others contacting Schwartz to “piss her off more.” She stated that the purpose of posting the blog entry was “to encourage more people than the existing e-mail already encouraged to contact the712 administration” about Jamfest. The district court concluded that the content of the message itself suggested that her purpose was “to encourage her fellow students to read and respond to the blog.” The district court also noted that “[s]everal LMHS students posted comments to the blog, including one in which the author referred to Ms. Schwartz as a ‘dirty whore.’”

The following morning, Schwartz and Niehoff received more phone calls and email messages regarding Jamfest. The pair, along with Miller, Jennifer Hill, the students’ faculty advisor, and David Fortin, LMHS’s building and grounds supervisor, met with the Student Council members who sent the email the day before. They agreed during this meeting that Jamfest would be rescheduled for June 8, 2007. The district court also found that, as a result of the Jamfest controversy, both Schwartz and Niehoff were forced to miss or arrived late to several school-related activities scheduled for April 24 and April 25.

The April 25 meeting resolved the dispute over Jamfest’s scheduling. Indeed, Jamfest was successfully held on June 8, with all but one of the scheduled bands participating. Even after this resolution, however, Schwartz and Niehoff, unaware of Avery’s blog post, continued to receive phone calls and emails in the controversy’s immediate aftermath. According to Schwartz’s testimony, she learned of Avery’s posting only some days after the meeting when her adult son found it while using an Internet search engine. Schwartz alerted Niehoff to the blog post on May 7, 2007. Niehoff concluded that Avery’s conduct had failed to display the civility and good citizenship expected of class officers. She noted that the posting contained vulgar language and inaccurate information. In addition, Avery had disregarded her counsel regarding the proper means of addressing issues of concern with school administrators. After researching Connecticut education law and LMHS policies, Niehoff decided that Avery should be prohibited from running for Senior Class Secretary. Because Avery had Advanced Placement exams at that time, however, Niehoff chose not to confront her immediately.

On May 17, Avery came to Niehoff’s office to accept her nomination for Senior Class Secretary. Niehoff handed Avery a printed copy of the April 24 blog post and requested that Avery apologize to Schwartz in writing, show a copy of the post to her mother, and withdraw her candidacy. Avery complied with the first two requests, but refused to honor the third. In response, Niehoff declined to provide an administrative endorsement of Avery’s nomination, which effectively prohibited her from running for Senior Class Secretary, though Avery was permitted to retain her positions as representative on the Student Council and as Junior Class Secretary. According to the district court, Niehoff explained that her decision was based on: (1) Avery’s failure to accept her counsel “regarding the proper means of expressing disagreement with administration policy and seeking to resolve those disagreements”; (2) the vulgar language and inaccurate information included in the post; and (3) its encouragement of others to contact the central office “to piss [Schwartz] off more,” which Niehoff did not consider appropriate behavior for a class officer.

As a result of Niehoff’s decision, Avery was not allowed to have her name on the ballot or to give a campaign speech at a May 25 school assembly regarding the elections. Apart from this disqualification from running for Senior Class Secretary, she was not otherwise disciplined.

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Lauren Doninger filed a complaint, [seeking] damages and an injunction requiring, among other things, that school officials hold new class secretary elections in which Avery would be allowed to run, and that Avery be permitted, as a duly elected class officer, to speak at the 2008 commencement ceremony. The district court concluded that a preliminary injunction was not warranted because Doninger did not show a sufficient likelihood of success on the merits. This appeal followed.

I. The First Amendment Claim

We begin with some basic principles. It is axiomatic that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” It is equally the case that the constitutional rights of students in public school “are not automatically coextensive with the rights of adults in other settings,” but must instead be applied in a manner consistent with the “special characteristics of the school environment.”

If Avery had distributed her electronic posting as a handbill on school grounds, this case would fall squarely within the Supreme Court’s precedents recognizing that the nature of a student’s First Amendment rights must be understood in light of the special characteristics of the school environment and that, in particular, offensive forms of expression may by prohibited. See Fraser.

To be clear, Fraser does not justify restricting a student’s speech merely because it is inconsistent with an educator’s sensibilities; its reference to “plainly offensive speech” must be understood in light of the vulgar, lewd, and sexually explicit language that was at issue in that case. We need not conclusively determine Fraser’s scope, however, to be satisfied that Avery’s posting—in which she called school administrators “douchebags” and encouraged others to contact Schwartz “to piss her off more”—contained the sort of language that properly may be prohibited in schools.

It is not clear, however, that Fraser applies to off-campus speech. Doninger’s principal argument on appeal is that because Avery’s posting took place within the confines of her home, it was beyond the school’s regulatory authority unless it was reasonably foreseeable that the posting would create a risk of substantial disruption within the school environment.

[Here,] the record amply supports the district court’s conclusion that it was reasonably foreseeable that Avery’s posting would reach school property. Indeed, the district court found that her posting, although created off-campus, “was purposely designed by Avery to come onto the campus.” The blog posting directly pertained to events at LMHS, and Avery’s intent in writing it was specifically “to encourage her fellow students to read and respond.” As the district714 court found, “Avery knew other LMHS community members were likely to read [her posting].” Several students did in fact post comments in response to Avery and…the posting managed to reach school administrators. The district court thus correctly determined that in these circumstances, “it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it.”

Contrary to Doninger’s protestations, moreover, the record also supports the conclusion that Avery’s posting “foreseeably create[d] a risk of substantial disruption within the school environment.” There are three factors in particular on which we rely to reach this conclusion. First, the language with which Avery chose to encourage others to contact the administration was not only plainly offensive, but also potentially disruptive of efforts to resolve the ongoing controversy. Her chosen words—in essence, that others should call the “douchebags” in the central office to “piss [them] off more”—were hardly conducive to cooperative conflict resolution. Indeed, at least one LMHS student (the one who referred to Schwartz as a “dirty whore”) responded to the post’s vulgar and, in this circumstance, potentially incendiary language with similar such language, thus evidencing that the nature of Avery’s efforts to recruit could create a risk of disruption.

Second, and perhaps more significantly, Avery’s post used the “at best misleading and at wors[t] false” information that Jamfest had been cancelled in her effort to solicit more calls and emails to Schwartz. The district court found that Avery “strongly suggested in her [post] that Jamfest had been cancelled, full stop, despite the fact that Ms. Niehoff, even according to Avery’s own testimony, offered the possibility of rescheduling Jamfest later in the school year.” This misleading information was disseminated amidst circulating rumors of Jamfest’s cancellation that had already begun to disrupt school activities. Avery herself testified that by the morning of April 25, students were “all riled up” and that a sit-in was threatened because students believed the event would not be held. Schwartz and Niehoff had received a deluge of calls and emails, causing both to miss or be late to school-related activities. Moreover, Avery and the other students who participated in writing the mass email were called away either from class or other activities on the morning of April 25 because of the need to manage the growing dispute, as were Miller, Hill, and Fortin. It was foreseeable in this context that school operations might well be disrupted further by the need to correct misinformation as a consequence of Avery’s post.

Although Doninger argues that Tinker is not satisfied here because the burgeoning controversy at LMHS may have stemmed not from Avery’s posting, but rather from the mass email of April 24, this argument is misguided insofar as it implies that Tinker requires a showing of actual disruption to justify a restraint on student speech. The question is not whether there has been actual disruption, but whether school officials “might reasonably portend disruption” from the student expression at issue.⁹ Here, given the circumstances surrounding the Jamfest dispute, Avery’s conduct posed a substantial risk that LMHS715 administrators and teachers would be further diverted from their core educational responsibilities by the need to dissipate misguided anger or confusion over Jamfest’s purported cancellation.

Finally, the district court correctly determined that it is of no small significance that the discipline here related to Avery’s extracurricular role as a student government leader. The district court found this significant in part because participation in voluntary, extracurricular activities is a “privilege” that can be rescinded when students fail to comply with the obligations inherent in the activities themselves. We consider the relevance of this factor instead in the context of Tinker and its recognition that student expression may legitimately be regulated when school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” More specifically, Avery’s conduct risked not only disruption of efforts to settle the Jamfest dispute, but also frustration of the proper operation of LMHS’s student government and undermining of the values that student government, as an extracurricular activity, is designed to promote. In this way, the instant case bears similarity to Lowery v. Euverard, which involved a group of high school football players who were removed from the team after signing a petition expressing their hatred of the coach and their desire not to play for him. The players lodged a First Amendment claim and the Sixth Circuit determined that the relevant question under Tinker was whether it was reasonable for school officials “to forecast that the petition would disrupt the team”—meaning that the petition might foreseeably frustrate efforts to teach the values of sportsmanship and team cohesiveness through participation in sport as an extracurricular activity. The court noted that the players had not been suspended from school or even prevented from further criticizing the coach: “[T]hey are free to continue their campaign to have Euverard fired. What they are not free to do is continue to play football for him while actively working to undermine his authority.”

Similarly, Avery was disqualified from running for Senior Class Secretary after school administrators determined that her behavior was not “consistent with her desired role as a class leader”—meaning in this context that it was inconsistent with LMHS school policy providing that student government should teach good citizenship and that any student who does not maintain a record of such citizenship may not represent fellow students. Doninger. The district court determined not only that Avery’s posting was offensive and misleading, but also that it “clearly violate[d] the school policy of civility and cooperative conflict resolution.” The court credited Niehoff’s testimony that class officers are expected to “work toward the objectives of the Student Council, work cooperatively with their advisor and with the administration, and promote good citizenship both in school and out.” The court explicitly found, moreover, that Niehoff advised Avery of these responsibilities during their conversation on April 24, and that she told Avery that the original Jamfest email and its approach to conflict resolution with the administration were inappropriate. Id. As the district court observed, “[u]nderstandably, then, Ms. Niehoff testified that a factor of particular relevance in her disciplinary decision was the fact that Avery posted her blog entry”—which reproduced the email Niehoff had criticized—“the very evening of the day on which that conversation occurred.”

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Given the cumulative effect of these findings, clearly supported by the record, we conclude that the district court did not abuse its discretion in determining that Doninger failed to demonstrate a sufficient likelihood of success on her First Amendment claim. We are mindful that, given the posture of this case, we have no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns. We decide only that based on the existing record, Avery’s post created a foreseeable risk of substantial disruption to the work and discipline of the school and that Doninger has thus failed to show clearly that Avery’s First Amendment rights were violated when she was disqualified from running for Senior Class Secretary.

NOTES AND QUESTIONS

1. After the Second Circuit refused to grant Doninger her requested injunction, Doninger continued with her lawsuit, seeking monetary damages on grounds that the defendants had violated her free speech rights by disqualifying her from running for class secretary and also by prohibiting her from wearing a T-shirt stating “Team Avery” to the student council election assembly. Upon cross-motions for summary judgment, the district court ruled for the school on the first claim, but held that the second claim regarding the T-shirt could go to trial. However, on appeal, the Second Circuit ruled that the defendants were entitled to qualified immunity on both claims and thus that the entire case should be dismissed. Under the doctrine of qualified immunity, governmental officials are immune from claims of constitutional violations unless the plaintiff can show (1) that the official violated a constitutional right and (2) that the right was “clearly established,” meaning that a reasonable official would have understood that his conduct was unlawful. Although the Supreme Court previously held that federal courts should first determine whether there was a constitutional violation before proceeding to the inquiry of whether that right was “clearly established,” the Supreme Court modified this view in Pearson v. Callahan, 555 U.S. 223 (2009), holding that courts can exercise their discretion about the order in which to proceed. Following Pearson, the Second Circuit decided not to conclusively address the threshold question of whether Doninger’s free speech rights had been violated. Instead, it simply stated that even assuming that her rights were violated, those rights were not clearly established. Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011).

2. The original Doninger decision used two different formulations for when schools have jurisdiction over students’ off-campus speech, first stating that “it was reasonably foreseeable that Avery’s posting would reach school property” and then agreeing with the district court’s conclusion that “it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it.” Is there a substantive difference between these two ways of phrasing the standard?

3. What is your reaction to the Doninger court’s statement that “given the posture of this case, we have no occasion to consider whether a different, more717 serious consequence than disqualification from student office would raise constitutional concerns”? Do you agree with the Second Circuit that the nature of the punishment should affect the Tinker substantial disruption analysis?

J.S. ex rel. Snyder v. Blue Mountain School District

650 F.3d 915 (3d Cir. 2011) (en banc)

Chagares, Circuit Judge, with whom McKee, Chief Judge, Sloviter, Ambro, Fuentes, Smith, Hardiman and Greenaway, Jr., Circuit Judges, join.

J.S., a minor, by and through her parents, Terry Snyder and Steven Snyder, individually and on behalf of their daughter, appeal the District Court’s grant of summary judgment in favor of the Blue Mountain School District (“the School District”) and denial of their motion for summary judgment. This case arose when the School District suspended J.S. for creating, on a weekend and on her home computer, a MySpace profile (the “profile”) making fun of her middle school principal, James McGonigle. The profile contained adult language and sexually explicit content. J.S. and her parents sued the School District under 42 U.S.C. §1983 and state law, alleging [among other things] that the suspension violated J.S.’s First Amendment free speech rights.

Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights.

J.S. was an Honor Roll eighth grade student who had never been disciplined in school until December 2006 and February 2007, when she was twice disciplined for dress code violations by McGonigle. On Sunday, March 18, 2007, J.S. and her friend K.L., another eighth grade student at Blue Mountain Middle School, created a fake profile of McGonigle, which they posted on MySpace, a social networking website. The profile was created at J.S.’s home, on a computer belonging to J.S.’s parents.

The profile did not identify McGonigle by name, school, or location, though it did contain his official photograph from the School District’s website. The profile was presented as a self-portrayal of a bisexual Alabama middle school principal named “M-Hoe.” The profile contained crude content and vulgar language, ranging from nonsense and juvenile humor to profanity and shameful personal attacks aimed at the principal and his family. For instance, the profile lists M-Hoe’s general interests as: “detention, being a tight ass, riding the fraintrain, spending time with my child (who looks like a gorilla), baseball, my golden pen, fucking in my office, hitting on students and their parents.” In addition, the profile stated in the “About me” section:

HELLO CHILDREN[.] yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL[.] I have come to myspace so i can pervert the718 minds of other principal’s [sic] to be just like me. I know, I know, you’re all thrilled[.] Another reason I came to myspace is because—I am keeping an eye on you students (who[m] I care for so much)[.] For those who want to be my friend, and aren’t in my school[,] I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man (who satisfies my needs) MY FRAINTRAIN.…

Id. Though disturbing, the record indicates that the profile was so outrageous that no one took its content seriously. J.S. testified that she intended the profile to be a joke between herself and her friends. At her deposition, she testified that she created the profile because she thought it was “comical” insofar as it was so “outrageous.”

Initially, the profile could be viewed in full by anyone who knew the URL (or address) or who otherwise found the profile by searching MySpace for a term it contained. The following day, however, J.S. made the profile “private” after several students approached her at school, generally to say that they thought the profile was funny. By making the profile “private,” J.S. limited access to the profile to people whom she and K.L. invited to be a MySpace “friend.” J.S. and K.L. granted “friend” status to about twenty-two School District students.

The School District’s computers block access to MySpace, so no Blue Mountain student was ever able to view the profile from school. McGonigle first learned about the profile on Tuesday, March 20, 2007, from a student who was in his office to discuss an unrelated incident. McGonigle asked this student to attempt to find out who had created the profile. He also attempted—unsuccessfully—to find the profile himself, even contacting MySpace directly.

At the end of the school day on Tuesday, the student who initially told McGonigle about the profile reported to him that it had been created by J.S. McGonigle asked this student to bring him a printout of the profile to school the next day, which she did. It is undisputed that the only printout of the profile that was ever brought to school was one brought at McGonigle’s specific request.

On Wednesday, March 21, 2007, McGonigle showed the profile to Superintendent Joyce Romberger and the Director of Technology, Susan Schneider–Morgan. The three met for about fifteen minutes to discuss the profile. McGonigle also showed the profile to two guidance counselors, Michelle Guers and Debra Frain (McGonigle’s wife). McGonigle contacted MySpace to attempt to discover what computer had been used to create the profile, but MySpace refused to release that information without a court order. The School District points to no evidence that anyone ever suspected the information in the profile to be true.

J.S. was absent from school on Wednesday, the day McGonigle obtained a copy of the profile. When she returned, on Thursday, March 22, 2007, McGonigle summoned J.S. and K.L. to his office to meet with him and Guidance Counselor Guers. J.S. initially denied creating the profile, but then admitted her role. McGonigle told J.S. and K.L. that he was upset and angry, and threatened the children and their families with legal action. Following this meeting, J.S. and K.L. remained in McGonigle’s office while he contacted their parents and waited for them to come to school.

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McGonigle met with J.S. and her mother Terry Snyder and showed Mrs. Snyder the profile. He told the children’s parents that J.S. and K.L. would receive ten days out-of-school suspension, which also prohibited attendance at school dances. McGonigle also threatened legal action. J.S. and her mother both apologized to McGonigle, and J.S. subsequently wrote a letter of apology to McGonigle and his wife.

McGonigle next contacted MySpace, provided the URL for the profile and requested its removal, which was done. McGonigle also contacted Superintendent Romberger to inform her of his decision regarding J.S. and K.L.’s punishment. Although Romberger could have overruled McGonigle’s decision, she agreed with the punishment. On Friday, March 23, 2007, McGonigle sent J.S.’s parents a disciplinary notice, which stated that J.S. had been suspended for ten days. The following week, Romberger declined Mrs. Snyder’s request to overrule the suspension.

On the same day McGonigle met with J.S. and her mother, he contacted the local police and asked about the possibility of pressing criminal charges against the students. The local police referred McGonigle to the state police, who informed him that he could press harassment charges, but that the charges would likely be dropped. McGonigle chose not to press charges.

The School District asserted that the profile disrupted school in the following ways. There were general “rumblings” in the school regarding the profile. More specifically, on Tuesday, March 20, McGonigle was approached by two teachers who informed him that students were discussing the profile in class. Randy Nunemacher, a Middle School math teacher, experienced a disruption in his class when six or seven students were talking and discussing the profile; Nunemacher had to tell the students to stop talking three times, and raised his voice on the third occasion. The exchange lasted about five or six minutes. Nunemacher also testified that he heard two students talking about the profile in his class on another day, but they stopped when he told them to get back to work. Nunemacher admitted that the talking in class was not a unique incident and that he had to tell his students to stop talking about various topics about once a week. Another teacher, Angela Werner, testified that she was approached by a group of eighth grade girls at the end of her Skills for Adolescents course to report the profile. Werner said this did not disrupt her class because the girls spoke with her during the portion of the class when students were permitted to work independently.

The School District also alleged disruption to Counselor Frain’s job activities. Frain canceled a small number of student counseling appointments to supervise student testing on the morning that McGonigle met with J.S., K.L., and their parents. Counselor Guers was originally scheduled to supervise the student testing, but was asked by McGonigle to sit in on the meetings, so Frain filled in for Guers. This substitution lasted about twenty-five to thirty minutes. There is no evidence that Frain was unable to reschedule the canceled student appointments, and the students who were to meet with her remained in their regular classes.

On March 28, 2007, J.S. and her parents filed this action against the School District, Superintendent Romberger, and Principal McGonigle. By way of720 stipulation, on January 7, 2008, all claims against Romberger and McGonigle were dismissed, and only the School District remained as a defendant. After discovery, both parties moved for summary judgment.

After analyzing the above facts, the District Court granted the School District’s summary judgment motion on all claims. Ultimately, the District Court held that although J.S.’s profile did not cause a “substantial and material” disruption under Tinker, the School District’s punishment was constitutionally permissible because the profile was “vulgar and offensive” under Fraser and J.S.’s off-campus conduct had an “effect” at the school. In a footnote, the District Court also noted that “the protections provided under Tinker do not apply to speech that invades the rights of others.”

III

The Supreme Court established a basic framework for assessing student free speech claims in Tinker, and we will assume, without deciding, that Tinker applies to J.S.’s speech in this case.

There is no dispute that J.S.’s speech did not cause a substantial disruption in the school. The School District’s counsel conceded this point at oral argument and the District Court explicitly found that “a substantial disruption so as to fall under Tinker did not occur.” Nonetheless, the School District now argues that it was justified in punishing J.S. under Tinker because of “facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” Although the burden is on school authorities to meet Tinker’s requirements to abridge student First Amendment rights, the School District need not prove with absolute certainty that substantial disruption will occur.

The facts in this case do not support the conclusion that a forecast of substantial disruption was reasonable. J.S. created the profile as a joke, and she took steps to make it “private” so that access was limited to her and her friends. Although the profile contained McGonigle’s picture from the school’s website, the profile did not identify him by name, school, or location. Moreover, the profile, though indisputably vulgar, was so juvenile and nonsensical that no reasonable person could take its content seriously, and the record clearly demonstrates that no one did. Also, the School District’s computers block access to MySpace, so no Blue Mountain student was ever able to view the profile from school. And, the only printout of the profile that was ever brought to school was one that was brought at McGonigle’s express request. Thus, beyond general rumblings, a few minutes of talking in class, and some officials rearranging their schedules to assist McGonigle in dealing with the profile, no disruptions occurred.¹⁰

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Courts must determine when an “undifferentiated fear or apprehension of disturbance” transforms into a reasonable forecast that a substantial disruption or material interference will occur. The School District cites several cases where courts held that a forecast of substantial and material disruption was reasonable.

The School District likens this case to the above cases by contending that the profile was accusatory and aroused suspicions among the school community about McGonigle’s character because of the profile’s references to his engaging in sexual misconduct. As explained above, however, this contention is simply not supported by the record. The profile was so outrageous that no one could have taken it seriously, and no one did. Thus, it was clearly not reasonably foreseeable that J.S.’s speech would create a substantial disruption or material interference in school.

Moreover, unlike [Doninger], J.S. did not even intend for the speech to reach the school—in fact, she took specific steps to make the profile “private” so that only her friends could access it. The fact that her friends happen to be Blue Mountain Middle School students is not surprising, and does not mean that J.S.’s speech targeted the school. Finally, any suggestion that, absent McGonigle’s actions, a substantial disruption would have occurred, is directly undermined by the record. If anything, McGonigle’s response to the profile exacerbated rather than contained the disruption in the school.¹¹

The facts simply do not support the conclusion that the School District could have reasonably forecasted a substantial disruption of or material interference with the school as a result of J.S.’s profile. Under Tinker, therefore, the School District violated J.S.’s First Amendment free speech rights when it suspended her for creating the profile.¹²

Because Tinker does not justify the School District’s suspension of J.S., the only way for the punishment to pass constitutional muster is if we accept the School District’s argument—and the District Court’s holding—that J.S.’s speech can be prohibited under the Fraser exception to Tinker. The School District argues that although J.S.’s speech occurred off campus, it was justified in disciplining her because it was “lewd, vulgar, and offensive [and] had an effect on the school and the educational mission of the District.” The School District’s argument fails at the outset because Fraser does not apply to off-campus speech. Specifically in Morse, Chief Justice Roberts, writing for the majority, emphasized that “[h]ad Fraser delivered the same speech in a public forum outside the school context, it would have been protected.”

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Thus, under the Supreme Court’s precedent, the Fraser exception to Tinker does not apply here. In other words, Fraser’s “lewdness” standard cannot be extended to justify a school’s punishment of J.S. for use of profane language outside the school, during non-school hours.

Accordingly, we conclude that the Fraser decision did not give the School District the authority to punish J.S. for her off-campus speech.

* * *

Neither the Supreme Court nor this Court has ever allowed schools to punish students for off-campus speech that is not school-sponsored or at a school-sponsored event and that caused no substantial disruption at school. We follow the logic and letter of these cases and reverse the District Court’s grant of summary judgment in favor of the School District and denial of J.S.’s motion for summary judgment on her free speech claim. An opposite holding would significantly broaden school districts’ authority over student speech and would vest school officials with dangerously overbroad censorship discretion. We will remand to the District Court to determine appropriate relief on this claim.

Smith, Circuit Judge, concurring, with whom McKee, Chief Judge, Sloviter, Fuentes, and Hardiman, Circuit Judges, join.

Because the school district suspended J.S. for speech that she engaged in at home on a Sunday evening, I fully agree with the majority’s conclusion that it violated J.S.’s First Amendment rights. I write separately to address a question that the majority opinion expressly leaves open: whether Tinker applies to off-campus speech in the first place. I would hold that it does not, and that the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large.

Tinker’s holding is expressly grounded in “the special characteristics of the school environment,” and the need to defer to school officials’ authority “to prescribe and control conduct in the schools.” Applying Tinker to off-campus speech would create a precedent with ominous implications. Doing so would empower schools to regulate students’ expressive activity no matter where it takes place, when it occurs, or what subject matter it involves—so long as it causes a substantial disruption at school. Tinker, for example, authorizes schools to suppress political speech—speech “at the core of what the First Amendment is designed to protect,”—if it substantially disrupts school activities. Suppose a high school student, while at home after school hours, were to write a blog entry defending gay marriage. Suppose further that several of the student’s classmates got wind of the entry, took issue with it, and caused a significant disturbance at school. While the school could clearly punish the students who acted disruptively, if Tinker were held to apply to off-campus speech, the school could also punish the student whose blog entry brought about the disruption. That cannot be, nor is it, the law.

To be sure, this case does not involve political speech. J.S. simply published an insulting (and, I would say, mean-spirited) parody of her principal on MySpace. But the lack of political content is irrelevant for First Amendment723 purposes. There is no First Amendment exception for offensive speech or for speech that lacks a certain quantum of social value. It is worth pointing out, as well, that although speech like J.S.’s may appear to be worthless, it does enable citizens to vent their frustrations in nonviolent ways. We ought not to discount the importance in our society of such a “safety valve.”

Fisher, Circuit Judge, dissenting, with whom Scirica, Rendell, Barry, Jordan, and Vanaskie, Circuit Judges, join.

Today’s holding severely undermines schools’ authority to regulate students who “materially and substantially disrupt the work and discipline of the school.” While I agree with the majority’s apparent adoption of the rule that off-campus student speech can rise to the level of a substantial disruption, I disagree with the Court’s application of that rule to the facts of this case.

The majority makes light of the harmful effects of J.S.’s speech and the serious nature of allegations of sexual misconduct. Broadcasting a personal attack against a school official and his family online to the school community not only causes psychological harm to the targeted individuals but also undermines the authority of the school. It was permissible for the School District to discipline J.S. because substantial disruption was reasonably foreseeable.

I disagree with the majority’s assessment that the four opinions of the Supreme Court on student speech “compel the conclusion that the School District violated J.S.’s First Amendment free speech rights.” In fact, the Supreme Court has never addressed whether students have the right to make off-campus speech that targets school officials with malicious, obscene, and vulgar accusations.

If the Middle School reasonably forecasted substantial disruption, then it had the authority to regulate J.S.’s speech. The majority seems to acknowledge just as much, but finds that “[t]he facts simply do not support the conclusion that the School District could have reasonably forecasted a substantial disruption of or material interference with the school as a result of J.S.’s profile.”

The speech at issue in Tinker did “not concern aggressive, disruptive action or even group demonstrations.…[It was] a silent, passive expression of opinion, unaccompanied by any disorder or disturbance.” The Court was concerned that peaceful and nonintrusive political speech was censored by the school. The Court was motivated by a fear of totalitarianism and the need to protect freedom of expression to preserve the foundations of a democratic system. What made the school’s prohibition so troubling was that it appeared to be a content-based regulation of political speech. The school prohibited students from protesting the war, whereas other students were permitted to wear political buttons. Some even wore the Iron Cross, a symbol traditionally associated with Nazism. “Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.”

In order to maintain a thriving democracy, students cannot be unreasonably encumbered in their freedom to express moral, political, and social ideals724 and beliefs. Schools should foster an environment of learning that is vital to the functioning of a democratic system and the maturation of a civic body. Allowing for the expression of beliefs and opinions in a robust but respectful environment encourages engagement, promotes self-improvement, and furthers the search for truth. The Court in Tinker embraced the freedom of speech as an essential component of the educational system.

J.S., by contrast, targeted her principal and her principal’s family with lewd, vulgar, and offensive speech. She created a MySpace page using a photograph of McGonigle that she had taken from the School District website, and she publicly disseminated numerous hurtful accusations. She accused McGonigle of sexual misconduct: “fucking in [his] office,” “hitting on students and their parents,” and being a “sex addict.” She insulted McGonigle by calling him a “dick head,” stating that he was “put on this world with a small dick,” and calling him a “fagass.” And J.S. insulted his family. She stated that his wife “looks like a man” and that his son “looks like a gorilla.” She stated that the principal enjoys “riding the fraintrain” and that “it’s a slow ride but you’ll get there eventually.”

J.S.’s speech is not the type of speech that the Tinker Court so vehemently protected. I agree with the majority that the facts in the record fail to demonstrate substantial disruption at the School. But the profile’s potential to cause disruption was reasonably foreseeable, and that is sufficient. Two forms of disruption were foreseeable. First, the MySpace page posed a reasonably foreseeable threat of interference with the educational environment. If J.S.’s speech went unpunished, it would undermine McGonigle’s authority and disrupt the educational process. Second, J.S.’s speech posed a reasonably foreseeable threat of disrupting the operations of the classroom. It was foreseeable that J.S.’s false accusations and malicious comments would disrupt McGonigle and Frain’s ability to perform their jobs.

J.S.’s speech posed a threat of substantial disruption to the educational environment. The majority fails to recognize the effects of accusations of sexual misconduct. J.S. created the profile at the URL ending in: “kidsrockmybed.” She accused McGonigle of having sex in his office, “hitting on students and their parents,” and being a “sex addict.” The profile stated that “I love children [and] sex (any kind).” Such accusations interfere with the educational process by undermining the authority of school officials to perform their jobs. J.S. embarrassed, belittled, and possibly defamed McGonigle. If J.S. were not disciplined, it would demonstrate to the student body that this form of speech is acceptable behavior—whether on or off campus.

Further, accusing school officials of sexual misconduct poses a foreseeable threat of diverting school resources required to correct the misinformation and remedy confusion. It was reasonably foreseeable that the accusations made in the MySpace profile would be shared with parents and teachers. McGonigle’s character would come under investigation, and his fitness to occupy a position of725 trust with adolescent children would be questioned. It is inevitable that as more students and parents learned of the profile, the School would experience disruption. While Superintendent Joyce Romberger may have dismissed the accusations as false because she knew him, students and parents unfamiliar with McGonigle may have had serious questions about McGonigle’s character and actions. Parents would become concerned that their children were supervised by a man accused of having sex in his office, being a “sex addict,” and “hitting on” their children. It was reasonably foreseeable that school administrators would have to spend a substantial amount of time alleviating these concerns. The Middle School acted reasonably in requesting the removal of the MySpace page, contacting J.S.’s parents, and suspending J.S. for ten days. If such steps were not taken, it is likely that the Middle School would have suffered substantial disruptions because McGonigle’s authority would have been severely undermined and school resources would have been diverted to alleviate the inevitable concerns.

The majority also overlooks the substantial disruptions to the classroom environment that follow from personal and harmful attacks on educators and school officials. J.S.’s speech attacked McGonigle and Frain in personal and vulgar terms and broadcasted it to the school community. This kind of harassment has tangible effects on educators. [Psychological research] indicates that it may cause teachers to leave the school and stop teaching altogether, and those who decide to stay are oftentimes less effective. In our case, McGonigle stated that he became distressed after viewing J.S.’s MySpace profile. He stated, “I was very upset and very angry, hurt, and I can’t understand why [J.S.] did this to me and my family.”

J.S.’s speech had a reasonably foreseeable effect on the classroom environment. In addition to causing a diminution in respect for authority and a diversion of school resources, J.S.’s speech posed reasonably foreseeable psychological harm to McGonigle and Frain that would impact their ability to perform their jobs. Being subject to such personal attacks, they may have been discouraged to interact with students and perhaps even motivated to leave without the institutional support of the School. Without effective punishment, McGonigle and Frain would have been less effective in fulfilling the educational mission of their positions. Furthermore, if the Middle School did not punish J.S., it was foreseeable that other students may have decided to personally attack McGonigle, Frain, or other members of the school. The Middle School protected its employees against such a vicious and personal attack, thereby preventing substantial disruption of the classroom environment. I believe our Court errs in precluding schools from protecting teachers and officials against such harassment.

Our decision today causes a split with the Second Circuit. In applying Tinker, the Second Circuit has held that off-campus hostile and offensive student726 internet speech that is directed at school officials results in a substantial disruption of the classroom environment.

The majority claims that [this case and Doninger] are distinguishable. It argues that no one could have taken J.S.’s accusations seriously and that “J.S. did not even intend for the speech to reach the school.” The majority misses the mark. As discussed above, J.S.’s post was at least potentially psychologically harmful to McGonigle and Frain, it was vicious in its accusations of sexual misconduct, and it posed the potential to undermine McGonigle’s authority at the Middle School and to divert School resources in tempering the inevitable anger and confusion amongst parents and the community following a public accusation of sexual misconduct. It is of no consequence if J.S. in fact did not intend to reach the Middle School. She directed obscene and harmful speech at McGonigle and his family, disseminated it to members of the School, and made unfounded accusations. For these reasons, it was reasonably foreseeable that her speech would cause a substantial disruption of the educational process and the classroom environment. And it is on this point that the majority parts ways with the Second Circuit.

* * *

The line between “on-campus” and “off-campus” speech is not as clear as it once was. Today, students commonly carry cell phones with internet capabilities onto school grounds. The majority embraces a notion that student hostile and offensive online speech directed at school officials will not reach the school. But with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment. I fear that our Court has adopted a rule that will prove untenable.

Bell v. Itawamba County School Board

799 F.3d 379 (5th Cir. 2015) (en banc)

Before Stewart, Chief Judge, and Jolly, Davis, Jones, Smith, Barksdale, Dennis, Clement, Prado, Owen, Elrod, Southwick, Haynes, Graves, Higginson and Costa, Circuit Judges.

Rhesa Hawkins Barksdale, Circuit Judge:

Away from school or a school function and without using school resources (off-campus speech), Taylor Bell, a student at Itawamba Agricultural High School in Itawamba County, Mississippi, posted a rap recording containing threatening language against two high school teachers/coaches on the Internet (first on his publicly accessible Facebook profile page and then on YouTube), intending it to reach the school community. In the recording, Bell names the two teachers and describes violent acts to be carried out against them. Interpreting the language as threatening, harassing, and intimidating the teachers, the Itawamba County School Board took disciplinary action against Bell.

Bell claims being disciplined violated his First Amendment right to free speech. On cross-motions for summary judgment, the district court ruled, 727 inter alia: the school board, as well as the school-district superintendent, Teresa McNeece, and the school principal, Trae Wiygul, acting in their official capacities (the school board), acted reasonably as a matter of law.

Primarily at issue is whether, consistent with the requirements of the First Amendment, off-campus speech directed intentionally at the school community and reasonably understood by school officials to be threatening, harassing, and intimidating to a teacher satisfies the almost 50–year–old standard for restricting student speech, based on a reasonable forecast of a substantial disruption. See Tinker. Because that standard is satisfied in this instance, the summary judgment is Affirmed.

On Wednesday, 5 January 2011, Bell, a high-school senior, posted a rap recording on his public Facebook profile page (and later on YouTube), using what appears to be a representation of a Native American as the rap recording’s cover image. (His high-school mascot is a Native American.) The recording, in part, alleges misconduct against female students by Coaches W. and R.

Although there are three different versions of the transcribed rap recording in the summary-judgment record, the school board stipulated, at the preliminary-injunction hearing for this action, to the accuracy of the following version provided by Bell, who refers to himself in the recording as “T–Bizzle”. (Accordingly, except for deleting part of both coaches’ names, the numerous spelling and grammatical errors in the following version are not noted.)

Let me tell you a little story about these Itawamba coaches / dirty ass niggas like some fucking coacha roaches / started fucking with the white and know they fucking with the blacks / that pussy ass nigga W[.] got me turned up the fucking max /

Fucking with the students and he just had a baby / ever since I met that cracker I knew that he was crazy / always talking shit cause he know I’m from daw-city / the reason he fucking around cause his wife ain’t got no tidies /

This niggha telling students that they sexy, betta watch your back / I’m a serve this nigga, like I serve the junkies with some crack / Quit the damn basketball team / the coach a pervert / can’t stand the truth so to you these lyrics going to hurt

What the hell was they thinking when they hired Mr. R[.] / dreadlock Bobby Hill the second / He the same see / Talking about you could have went pro to the NFL / Now you just another pervert coach, fat as hell / Talking about you gangsta / drive your mama’s PT Cruiser / Run up on T–Bizzle / I’m going to hit you with my rueger

Think you got some game / cuz you fucking with some juveniles / you know this shit the truth so don’t you try to hide it now / Rubbing on the black girls ears in the gym / white hoes, change your voice when you talk to them / I’m a dope runner, spot a junkie a mile away / came to football practice high / remember that day / I do / to me you a fool / 30 years old fucking with students at the school

Hahahah / You’s a lame / and it’s a dam shame / instead you was lame / eat shit, the whole school got a ring mutherfucker

Heard you textin number 25 / you want to get it on / white dude, guess you got a thing for them yellow bones / looking down girls shirts / drool running down your mouth / you fucking with the wrong one / going to get a pistol down your mouth / Boww

OMG / Took some girls in the locker room in PE / Cut off the lights / you motherfucking freak / Fucking with the youngins / because your pimpin game weak / How he get728 the head coach / I don’t really fucking know / But I still got a lot of love for my nigga Joe / And my nigga Makaveli / and my nigga codie / W[.] talk shit bitch don’t even know me

Middle fingers up if you hate that nigga / Middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga / middle fingers up / he get no mercy nigga

(Emphasis added.)

At the very least, this incredibly profane and vulgar rap recording had at least four instances of threatening, harassing, and intimidating language against the two coaches:

“betta watch your back / I’m a serve this nigga, like I serve the junkies with some crack”;
“Run up on T–Bizzle / I’m going to hit you with my rueger”;
“you fucking with the wrong one / going to get a pistol down your mouth / Boww”; and
“middle fingers up if you want to cap that nigga / middle fingers up / he get no mercy nigga”.

Bell’s use of “rueger” [sic] references a firearm manufactured by Sturm, Ruger & Co.; to “cap” someone is slang for “shoot”.

A screenshot of Bell’s Facebook profile page, taken approximately 16 hours after he posted the rap recording, shows his profile, including the rap recording, was open to, and viewable by, the public. In other words, anyone could listen to it.

On Thursday, 6 January, the day after the recording was posted, Coach W. received a text message from his wife, informing him about the recording; she had learned about it from a friend. After asking a student about the recording, the coach listened to it at school on the student’s smartphone (providing access to the Internet). The coach immediately reported the rap recording to the school’s principal, Wiygul, who informed the school-district superintendent, McNeece.

The next day, Friday, 7 January, Wiygul, McNeece, and the school-board attorney, Floyd, questioned Bell about the rap recording, including the veracity of the allegations, the extent of the alleged misconduct, and the identity of the students involved. Bell was then sent home for the remainder of the day.

Because of inclement weather, the school was closed through Thursday, 13 January. During Bell’s resulting time away from school, and despite his having spoken with school officials about his rap recording, including the accusations against the two coaches, Bell created a finalized version of the recording (adding commentary and a picture slideshow), and uploaded it to YouTube for public viewing.

Bell returned to school when it reopened on Friday, 14 January; he was removed from class midday by the assistant principal and told he was suspended, pending a disciplinary-committee hearing. (He was permitted to remain in the school commons until the school bus he rode arrived at the end of the day.) By letter that day to Bell’s mother, the superintendent informed her: Bell’s suspension would continue until further notification; and a hearing would be held to729 consider disciplinary action for Bell’s “alleged threatening intimidation and/or harassment of one or more school teachers”. The listed, possible basis for such action was consistent with the school district’s administrative disciplinary policy, which lists “[h]arassment, intimidation, or threatening other students and/or teachers” as a severe disruption.

The disciplinary-committee hearing, originally scheduled for Wednesday, 19 January, was delayed at Bell’s mother’s request; it was held on Wednesday, 26 January. The hearing began with the principal’s providing a summary of events, after which the YouTube version of the rap recording was played. Among the disciplinary-committee members’ questions, one member asked Bell whether he had reported the alleged misconduct to school officials. Bell explained he had not done so because he believed they would ignore his complaints. Instead, he made the rap recording because he knew people were “gonna listen to it, somebody’s gonna listen to it”, acknowledging several times during the hearing that he posted the recording to Facebook because he knew it would be viewed and heard by students. Moreover, he explained that at least 2,000 people had contacted him about the rap recording in response to the Facebook and YouTube postings.

One of the committee members asked Bell why he had posted a new version of the rap recording on YouTube, after school officials had discussed with him his posting it on Facebook. Bell gave a few (and somewhat conflicting) explanations: the Facebook version was a raw copy, so he wanted a finalized version on YouTube; the Facebook version was for his friends and “people locally” to hear, whereas the YouTube version was for music labels to hear; and he posted the YouTube version with a slideshow of pictures to help better explain the subject matter of the recording (his Facebook version only included a brief explanation of the backstory in the caption to the rap recording).

Although Bell’s attorney, at one point, attempted to discuss the misconduct of the coaches alleged in the rap recording, the school-board attorney redirected the proceeding to its purpose: to resolve whether Bell threatened, harassed, and intimidated the teachers; and, to decide whether his suspension should be upheld. In numerous instances, the school-board attorney emphasized this purpose, noting Bell’s “comments made [in the recording that] ‘you’ve f—ed with the wrong one / going to get a pistol down your mouth / POW’[,] those are threats to a teacher”.

Near the end of the disciplinary-committee hearing, Bell explained again: he put the recording on Facebook and YouTube knowing it was open to public viewing; part of his motivation was to “increase awareness of the situation”; and, although he did not think the coaches would hear the recording and did not intend it to be a threat, he knew students would listen to it, later stating “students all have Facebook”.

On 27 January, the day after the hearing, the school-board attorney informed Bell’s mother by letter that: the disciplinary committee had determined “the issue of whether or not lyrics published by Taylor Bell constituted threats to school district teachers was vague”, but that the publication of the recording constituted harassment and intimidation of two teachers, in violation of school-district policy and state law; as a result, the disciplinary committee730 recommended to the school board that Bell’s seven-day suspension be upheld and that he be placed in the county’s alternative school for the remainder of the nine-week grading period (approximately six weeks); Bell would not be “allowed to attend any school functions and [would] be subject to all rules imposed by the Alternative School”; and “[he would] be given time to make up any work missed while suspended or otherwise receive a 0, pursuant to Board policy”.

After being informed of the disciplinary-committee’s recommendation, Bell’s attorney informed the school-board attorney, by 31 January telephone call, that: Bell wished to appeal to the school board the disciplinary-committee’s recommendation….

On 7 February, the school board, after being presented with a recitation of the recording, unanimously found: Bell “threatened, harassed and intimidated school employees.”

By 11 February letter to Bell’s mother, the school-board attorney explained the board’s findings: “Bell did threaten, harass and intimidate school employees in violation of School Board policy and Mississippi State Law”. (Again, as stated in the written school-district policy, “[h]arassment, intimidation, or threatening other students and/or teachers” constitutes a severe disruption.)

Approximately two weeks later, on 24 February, Bell and his mother filed this action, claiming, inter alia, the school board, superintendent, and principal (again, the school board) violated his First Amendment right to free speech. Therefore, approximately three months later, the school board filed its summary-judgment motion on 1 August; Bell and his mother, on 5 August. On 15 March 2012, the district court denied the Bells’ motion and granted the school board’s.

On appeal, only the summary judgment against Bell’s First Amendment claim was challenged. A divided panel in December 2014 held, inter alia: the school board violated Bell’s First Amendment right by disciplining him based on the language in the rap recording. En-banc review was granted in February 2015.

In challenging the summary judgment, Bell claims the school board violated his First Amendment free-speech rights by temporarily suspending him and placing him in an alternative school for the six weeks remaining in the grading period. In support, he contends: Tinker does not apply to off-campus speech, such as his rap recording; and, even if it does, Tinker’s “substantial disruption” test is not satisfied. For the reasons that follow, we hold: Tinker applies to the off-campus speech at issue; there is no genuine dispute of material fact precluding ruling, as a matter of law, that a school official reasonably could find Bell’s rap recording threatened, harassed, and intimidated the two teachers; and a substantial disruption reasonably could have been forecast, as a matter of law.…

731

Despite Bell’s recognizing the wealth of precedent across numerous circuits contrary to his position, he asserts: Tinker does not apply to speech which originated, and was disseminated, off-campus, without the use of school resources. Bell’s position is untenable; it fails to account for evolving technological developments, and conflicts not only with our circuit’s precedent, but with that of every other circuit to have decided this issue.

Therefore, the next question is under what circumstances may off-campus speech be restricted. Our court’s precedent is less developed in this regard. For the reasons that follow, and in the light of the summary-judgment record, we need not adopt a specific rule: rather, Bell’s admittedly intentionally directing at the school community his rap recording containing threats to, and harassment and intimidation of, two teachers permits Tinker’s application in this instance.

Further, in holding Tinker applies to the off-campus speech in this instance, because such determinations are heavily influenced by the facts in each matter, we decline: to adopt any rigid standard in this instance; or to adopt or reject approaches advocated by other circuits.

Having held Tinker applies in this instance, the next question is whether Bell’s recording either caused an actual disruption or reasonably could be forecast to cause one. Taking the school board’s decision into account, and the deference we must accord it, this question becomes whether a genuine dispute of material fact exists regarding the reasonableness of finding Bell’s rap recording threatening, harassing, and intimidating; and, if no genuine dispute precludes that finding, whether such language, as a matter of law, reasonably could have been forecast to cause a substantial disruption.

[F]or the reasons that follow, a substantial disruption reasonably could have been forecast as a matter of law. Viewing the evidence in the requisite light most favorable to Bell, including his assertions that he wanted only to raise awareness of alleged misconduct by two teachers (Bell admitted at the disciplinary-committee hearing that his recording was meant to “increase awareness of the situation” and that he was “foreshadowing something that might happen” (emphasis added)), the manner in which he voiced his concern—with threatening, intimidating, and harassing language—must be taken seriously by school officials, and reasonably could be forecast by them to cause a substantial disruption.

The speech pertained directly to events occurring at school, identified the two teachers by name, and was understood by one to threaten his safety and by neutral, third parties as threatening. (Bell agreed at the disciplinary-committee hearing that “certain statements” were made to his mother “outside the school setting” that “‘put a pistol down your mouth’[,] that is a direct threat”.) The possible consequences were grave—serious injury to, including the possible death of, two teachers. Along that line, Bell admitted he intended the speech to be public and to reach members of the school community, which is further evidenced by his posting the recording to Facebook and YouTube.

732

In determining objective reasonableness vel non for forecasting a substantial disruption, the summary-judgment record and numerous related factors must be considered against the backdrop of the mission of schools: to educate. It goes without saying that a teacher, which includes a coach, is the cornerstone of education. Without teaching, there can be little, if any, learning. Without learning, there can be little, if any, education. Without education, there can be little, if any, civilization.

It equally goes without saying that threatening, harassing, and intimidating a teacher impedes, if not destroys, the ability to teach; it impedes, if not destroys, the ability to educate. It disrupts, if not destroys, the discipline necessary for an environment in which education can take place. In addition, it encourages and incites other students to engage in similar disruptive conduct. Moreover, it can even cause a teacher to leave that profession. In sum, it disrupts, if not destroys, the very mission for which schools exist—to educate.

If there is to be education, such conduct cannot be permitted. In that regard, the real tragedy in this instance is that a high-school student thought he could, with impunity, direct speech at the school community which threatens, harasses, and intimidates teachers and, as a result, objected to being disciplined.

Put succinctly, “with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment”. As stated, the school board reasonably could have forecast a substantial disruption at school, based on the threatening, intimidating, and harassing language in Bell’s rap recording.

In considering Bell’s First Amendment claim, and our having affirmed summary judgment for the school board under Tinker, it is unnecessary to decide whether Bell’s speech also constitutes a “true threat.”

III

For the foregoing reasons, the judgment is Affirmed.

James L. Dennis, Circuit Judge, with whom Graves, Circuit Judge, joins in full, and with whom Prado, Circuit Judge, joins [in part], dissenting:

Although mischaracterizing itself as “narrow” in scope, the en banc majority opinion broadly proclaims that a public school board is constitutionally empowered to punish a student whistleblower for his purely off-campus Internet speech publicizing a matter of public concern. As if to enforce the adage that “children should be seen and not heard,” the majority opinion holds that the Itawamba County School Board did not violate the First Amendment when it suspended high school senior Taylor Bell for composing and posting a rap song on the Internet using his home computer during non-school hours, which criticized two male teachers for their repeated sexual harassment of minor female students.

733

As detailed herein, the majority opinion commits a number of fundamental errors that necessitate highlighting lest readers be misinformed by its version of the relevant facts and law. First and foremost, the majority opinion erroneously fails to acknowledge that Bell’s rap song constitutes speech on “a matter of public concern” and therefore “occupies the highest rung of the hierarchy of First Amendment values.”

Second, in drastically expanding the scope of schools’ authority to regulate students’ off-campus speech, the majority opinion disregards Supreme Court precedent establishing that minors are entitled to “significant” First Amendment protection, including the right to engage in speech about violence or depicting violence, and that the government does not enjoy any “free-floating power to restrict the ideas to which children may be exposed.”

Third, by holding that the Tinker framework applies to off-campus speech like Bell’s, the majority opinion simply ignores that Tinker’s holding and its sui generis “substantial-disruption” framework are expressly grounded in “the special characteristics of the school environment,” whereas Bell’s rap song was recorded and released entirely outside the school environment. In this regard, the majority opinion also fails to account for the vital fact that the Tinker framework is far too indeterminate of a standard to adequately protect the First Amendment right of students, like Bell, to engage in expressive activities outside of school, as well as their parents’ constitutional right to direct their children’s upbringing and the First Amendment right of adults and children alike to receive students’ speech. In other words, the majority opinion allows schools to police their students’ Internet expression anytime and anywhere—an unprecedented and unnecessary intrusion on students’ rights.

Fourth and finally, the majority opinion also errs in its very application of the Tinker framework. As detailed in the panel majority’s opinion, the summary-judgment evidence simply does not support the conclusion, as required by Tinker, that Bell’s song substantially disrupted school activities or that school officials reasonably could have forecasted that it would do so.

Even in the most repressive of dictatorships, the citizenry is “free” to praise their leaders and other people of power or to espouse views consonant with those of their leaders. “Freedom of speech” is thus a hollow guarantee if it permits only praise or state-sponsored propaganda. Freedom of speech exists exactly to protect those who would criticize, passionately and vociferously, the actions of persons in power. But that freedom is denied to Bell by the majority opinion because the persons whose conduct he dared to criticize were school teachers. If left uncorrected, the majority opinion inevitably will encourage school officials to silence student speakers, like Taylor Bell, solely because they disagree with the content and form of their speech, particularly when such off-campus speech criticizes school personnel.

[T]he record indisputably reveals that Bell’s speech addressed a matter of public concern. Bell composed his song after a number of his female friends at school informed him that Coaches Wildmon and Rainey had frequently sexually harassed them during school. The lyrics of Bell’s song describe in detail the female students’ allegations of sexual misconduct, e.g., describing Coach Wildmon as “telling students that they [were] sexy,” and Coach Rainey as “rubbing734 on the black girls’ ears in the gym.” With a darkly parodic—and, by many standards, crude—tone, the song ridicules the coaches for their outrageously inappropriate conduct with the female students, e.g., describing one coach as having “drool running down [his] mouth” while he “look[s] down girls’ shirts,” and positing that Wildmon is “fucking around” because of his wife’s appearance (the song states that “his wife ain’t got no titties”). By describing Rainey as “Bobby Hill the second,” the song also draws parallels between the coaches’ alleged sexual misconduct and the alleged sexual misconduct of a former Itawamba coach, Bobby Hill, who was arrested the previous year for sending sexually explicit text messages to a female student. Although the song does contain some violent lyrics, the song’s overall “content” is indisputably a darkly sardonic but impassioned protest of two teachers’ alleged sexual misconduct, e.g., opining that Rainey is “a fool/30 years old fucking with students at the school.” That Bell’s song may fall short of the School Board’s aesthetic preferences for socio-political commentary is not relevant to determining whether the rap song’s content addresses a matter of public concern.

The “form” of Bell’s speech, i.e., a rap song, likewise militates in favor of finding that it addresses a matter of public concern. It is axiomatic that music, like other art forms, has historically functioned as a mechanism to raise awareness of contemporary social issues. Rap is no exception. A long aspiring rap artist himself, Bell invoked this same tradition by deploying the artistic conventions and style of the rap genre in order to critique the coaches’ sexual harassment of female students.

Finally, the “context” of Bell’s speech likewise evinces that it addresses a matter of public import. By releasing his song on the Internet, Bell sought to bring attention to the coaches’ sexual misconduct against his female classmates, just as the Westboro group in Snyder sought to bring attention to its protest by picketing in public. In a monologue introduction on the YouTube version of his song, Bell described the genesis of the rap as follows:

A lot of people been asking me lately you know what was my reasoning behind creating P.S. Koaches. It’s…something that’s been going on…for a long time [ ] that I just felt like I needed to address. I’m an artist…I speak real life experience.…

Later, at the Disciplinary Committee meeting, Bell likewise explained that the song was an effort to “speak out” on the issue of teacher-on-student sexual harassment.

Although Bell was an enrolled high school student, he was not within the custody of the school system when he initially composed, recorded, and posted his rap song on the Internet during the Christmas holidays. At that time he was eighteen years old but living with his mother, and therefore was an adult capable of making his own decisions as to expressing his views publicly. Even if he had still been a minor at the time he composed and posted his song, he would have been subject to the exclusive control, custody, and discipline of his parent—not the school system. Because Bell’s speech did not fall within any of the narrow unprotected categories of speech recognized by the Supreme Court (e.g., obscenity or a true threat), it was fully protected speech and presumptively not subject735 to governmental regulation or censorship on the basis of its content. Beyond that basic First Amendment protection, however, the content, form, and context of Bell’s speech indisputably reveals that it was also entitled to “special protection” against censorship because it was speech on a matter of public concern safeguarded “at the heart” of the First Amendment’s protections. Therefore, at a bare minimum, Bell was entitled to as much, if not more, First Amendment protection as tortfeasors and public employees when the state attempts to regulate their speech addressing matters of public concern. Moreover, while it is not dispositive of this case, it bears mentioning that the School Board has never attempted to argue that Bell’s song stated any fact falsely.

The majority opinion, however, wholly ignores these critical aspects of Bell’s speech, instead reflexively reducing Bell’s rap song to “intimidating, harassing, and threatening” speech without any analysis whatsoever. Indeed, under the majority opinion’s newfound approach, Bell’s off-campus speech is regulable by school officials pursuant to Tinker because (i) Bell wanted his speech to be heard by community members and (ii) “a layperson” apparently would view some of the lyrics in the rap as “threatening,” “harassing,” and “intimidating.” As an initial matter, I am compelled to point out that the majority opinion’s test unabashedly adopts almost the precise wording of the Itawamba County School Board’s disciplinary policy. Unmoored from traditional constitutional law analysis, the majority opinion instead exalts this single school board’s policy to a new rule of constitutional law. See Maj. Op. (holding that Tinker applies where student’s off-campus speech is threatening, harassing and intimidating).

In sum, by refusing to recognize that Bell’s speech addresses a matter of public concern and is thereby entitled to “special protection” against censorship, the majority opinion creates a precedent that effectively inoculates school officials against off-campus criticism by students. In so doing, the majority opinion fails to take seriously the long-established principle that the First Amendment was adopted to protect “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials

Edward C. Prado, Circuit Judge, dissenting:

I agree with Judge Dennis’s dissent that Bell’s rap song constitutes expressive speech protected by the First Amendment and that the school’s discipline for that speech violated the First Amendment under existing Supreme Court precedent. I therefore respectfully dissent and join Judge Dennis’s dissent in part.

I write separately because off-campus online student speech is a poor fit for the current strictures of First Amendment doctrine, which developed from restrictions on other media, and I hope that the Supreme Court will soon give courts the necessary guidance to resolve these difficult cases.

NOTES AND QUESTIONS

1. As Snyder and Bell indicate, both the Third and Fifth Circuits have recently gone en banc to address schools’ authority over students’ off-campus speech. And in both cases, the judges divided sharply over (1) whether schools736 should have such authority at all and (2) whether, given the specific facts at hand, Tinker’s “substantial disruption” test was satisfied. Which of the various approaches posited did you find most convincing? In which case did you think the student had a more compelling argument?

2. Doninger, Snyder, and Bell illustrate the growing number of Internet speech cases involving expressions of hostility toward school authority figures. Why do you think this sort of speech is becoming more prevalent online? Numerous researchers have pointed to an “online disinhibition” effect—that is, that people speak with fewer inhibitions on the Internet. John Suler has identified several causes of this effect, including the way in which the Internet minimizes the status of authority figures (by removing “the trappings of their environmental settings”) and enables not only anonymous but asynchronous speech, such that students can express hostility without having to immediately cope with the response. John Suler, The Online Disinhibition Effect, 7 CyberPsychol. & Behav. 321 (2004). In what ways might these aspects of online speech increase the likelihood of hostile expression toward teachers and principals?

3. Suppose a school decides not to do anything about a student’s hostile speech toward a teacher, principal, or other school staff member. Might the staff member have a legal claim against the school? Under current law, it seems unlikely, particularly if such speech originates off school grounds. First, although most states have passed antibullying laws that apply to schools, few of those laws mention school personnel as possible victims, and those that do contain no private right of action. Second, although school personnel might be able to bring “hostile work environment” employment-related claims against their school district employers for failing to protect them from student hostility, such claims face significant obstacles: the plaintiff would have to show that he or she was harassed on the basis of a protected characteristic, that the harassment was severe and pervasive, and that the school district should be held liable for it. Making this final showing is likely to be particularly difficult in the context of a student’s off-campus speech that does not occur under school supervision. See Emily Gold Waldman, Badmouthing Authority: Hostile Speech About School Authorities and the Limits of School Officials, 19 Wm. & Mary Bill of Rts. J. 591, 634-643 (2011). That schools are unlikely to be successfully sued under an employment law theory for not acting, however, does not mean that they are unable to act. As the above cases illustrate, whether schools can act depends on whether doing so would violate the student speaker’s First Amendment rights.

4. Of course, not all off-campus speech cases involve student speech against school authority figures. The case that follows presents another not-uncommon scenario: off-campus speech targeted at a fellow student.

Kowalski v. Berkeley County Schools

652 F.3d 565 (4th Cir. 2011)

Niemeyer, Circuit Judge:

On December 1, 2005, Kara Kowalski, who was then a 12th grade student at Musselman High School in the Berkeley County School District, returned737 home from school and, using her home computer, created a discussion group webpage on MySpace.com with the heading “S.A.S.H.” Under the webpage’s title, she posted the statement, “No No Herpes, We don’t want no herpes.” Kowalski claimed in her deposition that “S.A.S.H.” was an acronym for “Students Against Sluts Herpes,” but a classmate, Ray Parsons, stated that it was an acronym for “Students Against Shay’s Herpes,” referring to another Musselman High School Student, Shay N., who was the main subject of discussion on the webpage.

After creating the group, Kowalski invited approximately 100 people on her MySpace “friends” list to join the group. MySpace discussion groups allow registered users to post and respond to text, comments, and photographs in an interactive fashion. Approximately two dozen Musselman High School students responded and ultimately joined the group. Kowalski later explained that she had hoped that the group would “make other students actively aware of STDs,” which were a “hot topic” at her school.

Ray Parsons responded to the MySpace invitation at 3:40 p.m. and was the first to join the group, doing so from a school computer during an after hours class at Musselman High School. Parsons uploaded a photograph of himself and a friend holding their noses while displaying a sign that read, “Shay Has Herpes,” referring to Shay N. The record of the webpage shows that Kowalski promptly responded, stating, “Ray you are soo funny!=)” It shows that shortly thereafter, she posted another response to the photograph, stating that it was “the best picture [I]’ve seen on myspace so far! ! ! !” Several other students posted similar replies. Parsons also uploaded to the “S.A.S.H.” webpage two additional photographs of Shay N., which he edited. In the first, he had drawn red dots on Shay N.’s face to simulate herpes and added a sign near her pelvic region, that read, “Warning: Enter at your own risk.” In the second photograph, he captioned Shay N.’s face with a sign that read, “portrait of a whore.”

The commentary posted on the “S.A.S.H.” webpage mostly focused on Shay N. The first five comments were posted by other Musselman High School students and ridiculed the pictures of Shay N. One student stated that “shay knows about the sign” and then stated, “wait til she sees the page lol.” (The abbreviation “lol” means “laugh out loud” or “laughing out loud.”) The next comment replied, “Haha. screw her” and repeatedly stated, “This is great.” After expressing her approval of the postings, this student noted the “Shay has herpes sign” and stated, “Kara sent me a few interesting pics…Would you be interested in seeing them Ray?” One student posted, “Kara=My Hero,” and another said, “your so awesome kara…i never thought u would mastermind a group that hates [someone] tho, lol.” A few of the posts assumed that Kowalski had posted the photographs of Shay N., but Parsons later clarified that it was he who had posted the photographs.

A few hours after the photographs and comments had been posted to the MySpace.com page, Shay N.’s father called Parsons on the telephone and expressed his anger over the photographs. Parsons then called Kowalski, who unsuccessfully attempted to delete the “S.A.S.H.” group and to remove the photographs. Unable to do so, she renamed the group “Students Against Angry People.”

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The next morning, Shay N.’s parents, together with Shay, went to Musselman High School and filed a harassment complaint with Vice Principal Becky Harden regarding the discussion group, and they provided Harden with a printout of the “S.A.S.H.” webpage. Shay thereafter left the school with her parents, as she did not want to attend classes that day, feeling uncomfortable about sitting in class with students who had posted comments about her on the MySpace webpage.

After receiving Shay N.’s complaint, Principal Ronald Stephens contacted the central school board office to determine whether the issue was one that should be addressed with school discipline. A school board official indicated that discipline was appropriate. Principal Stephens then conducted an investigation into the matter, during which he and Vice Principal Harden interviewed the students who had joined the “S.A.S.H.” group to determine who posted the photographs and comments. As part of the investigation, Principal Stephens and Vice Principal Harden questioned Parsons, who admitted that he had posted the photographs. Vice Principal Harden met with Kowalski, who admitted that she had created the “S.A.S.H.” group but denied that she posted any of the photographs or disparaging remarks.

School administrators concluded that Kowalski had created a “hate website,” in violation of the school policy against “harassment, bullying, and intimidation.” For punishment, they suspended Kowalski from school for 10 days and issued her a 90-day “social suspension,” which prevented her from attending school events in which she was not a direct participant. Kowalski was also prevented from crowning the next “Queen of Charm” in that year’s Charm Review, having been elected “Queen” herself the previous year. In addition, she was not allowed to participate on the cheerleading squad for the remainder of the year. After Kowalski’s father asked school administrators to reduce or revoke the suspension, Assistant Superintendent Rick Deuell reduced Kowalski’s out-of-school suspension to 5 days, but retained the 90-day social suspension.

Kowalski claims that, as a result of her punishment, she became socially isolated from her peers and received cold treatment from teachers and administrators. She stated that she became depressed and began taking prescription medication for her depression.

Kowalski acknowledged that at the beginning of each school year, including her senior year, she had received a Student Handbook which included the School District’s Harassment, Bullying, and Intimidation Policy, as well as the Student Code of Conduct. The Harassment, Bullying, and Intimidation Policy prohibited “any form of…sexual…harassment…or any bullying or intimidation by any student…during any school-related activity or during any education-sponsored event, whether in a building or other property owned, use[d] or operated by the Berkeley Board of Education.” The Policy defined “Bullying, Harassment and/or Intimidation” as “any intentional gesture, or any intentional written, verbal or physical act that”

1. A reasonable person under the circumstances should know will have the effect of:

a. Harming a student or staff member;…

2. Is sufficiently inappropriate, severe, persistent, or pervasive that it creates an intimidating, threatening or abusive educational environment for a student.

739 The policy also provided that violators would be suspended and that disciplinary actions could be appealed.

The Student Code of Conduct provided, “All students enrolled in Berkeley County public schools shall behave in a safe manner that promotes a school environment that is nurturing, orderly, safe, and conducive to learning and personal-social development.” It also committed students to “help create an atmosphere free from bullying, intimidation and harassment” and to “treat others with respect” and “demonstrate compassion and caring.” The Code classified “Bullying/Harassment/Intimidation” as a “Level III Violation” with possible consequences including an out-of-school suspension up to 10 days; signing a behavioral contract; being denied participation in class and/or school activities; and a social suspension of up to one semester. Before punishing a student under the Student Code of Conduct, a principal was required to “immediately undertake or authorize an investigation” of the incident and complaint, including “personal interviews with the complain[an]t, the individual(s) against whom the complaint is filed, and others who may have knowledge of the alleged incident(s) or circumstances giving rise to the complaint.”

The school administrators’ meetings with Kowalski and the other students involved in the “S.A.S.H.” webpage were intended to fulfill the procedures described in the Student Handbook.

Kowalski commenced this action in November 2007 against the Berkeley County School District.

Kowalski contends first that the school administrators violated her free speech rights under the First Amendment by punishing her for speech that occurred outside the school.

According to a federal government initiative, student-on-student bullying is a “major concern” in schools across the country and can cause victims to become depressed and anxious, to be afraid to go to school, and to have thoughts of suicide. See StopBullying.gov. Just as schools have a responsibility to provide a safe environment for students free from messages advocating illegal drug use, see Morse, schools have a duty to protect their students from harassment and bullying in the school environment.

While Kowalski does not seriously dispute the harassing character of the speech on the “S.A.S.H.” webpage, she argues mainly that her conduct took place at home after school and that the forum she created was therefore subject to the full protection of the First Amendment. This argument, however, raises the metaphysical question of where her speech occurred when she used the Internet as the medium. Kowalski indeed pushed her computer’s keys in her home, but she knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment. She also knew that the dialogue would and did take place among Musselman High School students whom she invited to join the “S.A.S.H.” group and that the fallout from her conduct and the speech within the group would be felt in the school itself. Indeed, the group’s740 name was “Students Against Sluts Herpes” and a vast majority of its members were Musselman students. As one commentator on the webpage observed, “wait til [Shay N.] sees the page lol.” Moreover, as Kowalski could anticipate, Shay N. and her parents took the attack as having been made in the school context, as they went to the high school to lodge their complaint.

There is surely a limit to the scope of a high school’s interest in the order, safety, and well-being of its students when the speech at issue originates outside the schoolhouse gate. But we need not fully define that limit here, as we are satisfied that the nexus of Kowalski’s speech to Musselman High School’s pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being.

Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created “actual or nascent” substantial disorder and disruption in the school. First, the creation of the “S.A.S.H.” group forced Shay N. to miss school in order to avoid further abuse. Moreover, had the school not intervened, the potential for continuing and more serious harassment of Shay N. as well as other students was real. Experience suggests that unpunished misbehavior can have a snowballing effect, in some cases resulting in “copycat” efforts by other students or in retaliation for the initial harassment.

Thus, even though Kowalski was not physically at the school when she operated her computer to create the webpage and form the “S.A.S.H.” MySpace group and to post comments there, other circuits have applied Tinker to such circumstances. To be sure, it was foreseeable in this case that Kowalski’s conduct would reach the school via computers, smartphones, and other electronic devices, given that most of the “S.A.S.H.” group’s members and the target of the group’s harassment were Musselman High School students. Indeed, the “S.A.S.H.” webpage did make its way into the school and was accessed first by Musselman student Ray Parsons at 3:40 p.m., from a school computer during an after hours class. Furthermore, as we have noted, it created a reasonably foreseeable substantial disruption there.

At bottom, we conclude that the school was authorized to discipline Kowalski because her speech interfered with the work and discipline of the school.

III

Kowalski next contends that she was denied due process because she “was afforded neither adequate notice nor a meaningful opportunity to be heard before she was deprived of her right to an education and her right to free speech.” She argues that “no language” in the Harassment, Bullying and Intimidation Policy puts students on notice that they “could be subjected to discipline at school for behavior outside of school” and that the school “did not provide the due process required by [its] own policy.”

The defendants contend that Kowalski acknowledged receiving copies of the Student Handbook at the beginning of each school year and that the Student Handbook put Kowalski on notice of the Harassment, Bullying and Intimidation Policy, as well as the Student Code of Conduct, both of which prohibit harassment and bullying. They argue, moreover, that “it was reasonably foreseeable741 [to Kowalski] that [her] chat room could, and in fact did, reach the school premises and cause a substantial disruption” there. The defendants also assert that Kowalski was told about Shay N.’s complaint and allowed to respond before being punished and that “an appeal process was available, and used on her behalf.”

While schools are required to provide students with some level of due process, “‘maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.’” We are satisfied that the Musselman High School Harassment, Bullying and Intimidation Policy, in conjunction with the Student Code of Conduct, adequately put Kowalski on notice of the type of behavior that could be punished by school authorities. The Code provides explicitly that “a student will not bully/intimidate or harass another student.”

Although the prohibitions against harassment and bullying applied in a “school-related” context, both the Harassment, Bullying and Intimidation Policy and the Student Code of Conduct applied when conduct could adversely affect the school environment. Thus, while the prohibited conduct had to be related to the school, this is not to say that volatile conduct was only punishable if it physically originated in a school building or during the school day. Rather, the prohibitions are designed to regulate student behavior that would affect the school’s learning environment. Because the Internet-based bullying and harassment in this case could reasonably be expected to interfere with the rights of a student at Musselman High School and thus disrupt the school learning environment, Kowalski was indeed on notice that Musselman High School administrators could regulate and punish the conduct at issue here.

Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem.

NOTES AND QUESTIONS

1. Assuming that courts continue to apply Tinker to students’ off-campus speech, should the analysis differ depending on whether the victim of hostile speech is a student or a school staff member?

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2. Do you think the harassment policy in Kowalski would have passed muster under then-Judge Alito’s analysis in Saxe?

3. Do you agree that Kowalski had sufficient notice that the school could punish her for online speech? If not, what type of notice would have sufficed?

4. If the school had not done anything about the S.A.S.H. webpage, could the victimized student have sued the school? As discussed in Section B, Davis allows a school to be held liable under Title IX for gender-based harassment that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis further provides, however, that for a school to be held liable under Title IX, “the harassment must take place in a context subject to the school district’s control,” and emphasizes that a school’s liability is “limited to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.” Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999). This presents a significant obstacle for students seeking to sue schools for their inaction in response to off-campus speech. Of course, Davis’s high standard for school liability does not necessarily preclude schools from acting.

5. Numerous commentators have disagreed with the approach of essentially applying Tinker to student speech that originates off-campus. Mary-Rose Papandrea, for example, writes:

The application of Tinker’s materially disruptive standard—regardless of whether it is preceded with an inquiry into whether the speech is properly labeled “on-campus” or “off-campus” speech—provides little protection to students’ expressive rights. First, many courts are far too deferential to schools’ assertions that the challenged expressive activity was substantially and materially disruptive to schoolwork or discipline. Second, and more importantly, the Tinker test is ill-suited to speech in the digital media. Many off-campus events and activities can distract students from their work, but it would make no sense to permit schools to serve as a cultural censor. Schools plainly lack authority to prevent their students from watching the latest television show or playing the newest video game; schools should likewise have no authority to restrict the distracting expression their students create.

Computers, mobile phones, and cameras play an integral role in the way young people communicate with each other and the world at large. Students have always made fun of their teachers and harassed their classmates, but school officials generally did not learn about it. Now school officials frequently find this material simply by logging onto the Internet. Speech that in another time would escape the school’s notice now has become the basis for suspensions, expulsions, and other significant punishment. Rather than punish their students, schools must instead become more tolerant of speech that they do not like and focus more on educating their students to use digital media responsibly.

Mary-Rose Papandrea, Student Speech Rights in the Digital Age, 60 Fla. L. Rev. 1027, 1102 (2008). What approach do you think the Supreme Court should adopt when it rules on this issue (as it inevitably will)?

7. Although there has been considerable attention to the problem of cyberbullying in the past few years, a recent study concluded that “there has been no systematic increase in cyberbullying” between 2007 and 2010. The study, which involved approximately 450,000 American students, found that 4.5 percent of743 them reported having been cyberbullied and that the vast majority of that group had also been bullied in at least one other way. See Nirvi Shaw, Researchers: Cyberbullying Not as Widespread, Common as Believed, Educ. Wk., Aug. 4, 2012.

PROBLEM

The Elmville School District is located in Elmville, an upper-middle-class suburb in the state of East Dakota, which falls within the Thirteenth Circuit Court of Appeals. (The Thirteenth Circuit is bound by Supreme Court precedent and treats all other decisions as potentially persuasive, but not binding.) Elmville High School (EHS) is the school district’s one high school.

The principal of EHS, Robin Rhode, had just arrived in her office on Monday morning. There was only one month left in the school year, and it had been a relatively quiet year, much to her relief. Suddenly, two high school seniors—Kyle Kramer and Liz Lorber, who had recently become a couple—knocked on her door. “We have to talk to you about something,” Liz said. “Is now a good time?”

Kyle and Liz then informed Principal Rhode that a group of boys in the EHS senior class had created a private EHS group on Facebook entitled the “Men’s Issues Club.” Kyle found out about the Men’s Issues Club when he received a Facebook invitation to join it from a fellow EHS male senior. (The page for the “Men’s Issues Club” is not accessible without an invitation to join it.) Kyle was taken aback by some of the statements on the webpage and showed it to Liz, who was furious and insisted that they bring it to Principal Rhode’s attention.

“Show me this website,” Principal Rhode responded, getting up from her desk so Kyle could sit down at her computer.

Clearly feeling awkward about the situation, Kyle sat down at Principal Rhode’s desk, logged into his virtualworld.com account, and showed Principal Rhode the webpage for the Men’s Issues Club. Principal Rhode immediately saw that the ten members of the club included some of the most high-achieving male seniors, including the senior class president, Charlie Cooper. On the webpage, one student referred to a female English teacher as a “crazy bitch” and the “Official Head of Protection for the Feminist Society.” Another student boasted that he had slept with five members of the female field hockey team and proceeded to rank them in order of attractiveness. The other members of the club all weighed in with their own rankings of the five female students’ attractiveness. A third student lamented “feminism” and Hillary Clinton’s presidential campaign, stating “Where do they belong??? In the kitchen! In the kitchen! In the kitchen!”

Liz, who was friends with the five female members of the field hockey team who had been ranked in the website, was irate. “This is disgusting! I haven’t told anyone yet about the website—Kyle made me promise not to, until we came to you,” she said. “But I’m sure those girls are going to find out about it. And the rest of it is vile too.”

“I agree,” Principal Rhode responded, clearly shocked herself. She printed out a copy of the webpage and thanked Kyle and Liz for bringing it to her attention.

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Principal Rhode has now called you, her trusty advisor. Her tentative plan is to call these ten male seniors into her office, order them to take down the website, and punish them by prohibiting them from attending the prom or graduation. But she knows that some EHS parents are very litigious, and she could imagine them suing on behalf of their children in response. She asks you for your legal advice: if any of these parents filed suit, would they have a good case? Conversely, if she does nothing about the website, does that also create any potential legal liability? Overall, how do you recommend that she deal with this situation?

D. SCHOOL DRESS CODES AND UNIFORM POLICIES

So far, this chapter has focused on pure speech restrictions—and indeed, those make up the bulk of student speech controversies. School dress codes and uniform policies, however, also limit students’ freedom of expression. Lawsuits challenging such rules have generally been unsuccessful, as you will see below. Indeed, courts do not seem even to consider them particularly close cases. Do you think that the courts have been sufficiently protecting student rights here?

Blau v. Fort Thomas Public School District

401 F.3d 381 (6th Cir. 2005)

Sutton, Circuit Judge.

In 2001, Highlands Middle School, which is located in Fort Thomas, Kentucky, adopted a dress code for its students. On behalf of his daughter, Amanda Blau, then in the sixth grade at Highlands Middle School, and himself, Robert Blau challenged the constitutionality of the regulation, claiming that it violates (1) Amanda’s First Amendment right to freedom of expression, (2) her substantive-due-process right to wear the clothes of her choosing and (3) Robert’s substantive-due-process right to control the dress of his child. The district court found no constitutional violation and neither do we.

Highlands Middle School includes students in the sixth, seventh and eighth grades and is part of the Fort Thomas Public School District. Under Kentucky law, each school district has a governing school board and each school has a Site Based Decision Making Council consisting of two parents, three teachers and the school’s principal. The Council has responsibility for setting school policy that is consistent with the school board’s policies and that is designed to “provide an environment to enhance the students’ achievement and help the school meet [its] goals.”

On May 15, 2001, at a meeting of the Highlands Council, several parents proposed a dress code for the school to “create unity, strengthen school spirit and745 pride, and focus[] attention upon learning and away from distractions.” The proposal relied on other school districts’ findings that dress codes had “enhanced school safety, improved the learning environment, promoted good behavior, reduced discipline problems, improved test scores, improved children’s self-respect and self-esteem, bridged socio-economic differences between families, helped eliminate stereotypes and produced a cost savings for families.”

On May 22, 2001, Highlands principal Mary Adams sent a letter to all Highlands students and their parents about the dress code proposal and set up a meeting to discuss it. Several Highlands students and their parents attended the meeting, including Amanda and Robert Blau. After the meeting, the Council formed a committee consisting of two council members, two teachers, four parents and four students (including Amanda Blau) to make a recommendation about the proposal. The dress code committee gathered feedback from teachers, parents and students, made modifications to the proposal and eventually proposed a dress code for the middle school, which the Council adopted on August 21, 2001.

Among other prohibitions, the dress code restricts the following:

clothing that is too tight, revealing or baggy as well as tops and bottoms that do not “overlap”;
“hats, caps, scarves, or sweatbands” except on “special event days” such as “spirit” or “reward” days;
non-jewelry chains and chain wallets;
clothing that is “distressed” or has “holes in it”;
“visible body piercing (other than ears)”;
“unnaturally colored hair that is distracting to the educational process,” including “blue, green, red, purple, [or] orange” hair;
“clothing that is too long, flip-flop sandals, or high platform shoes”;
pants, shorts or skirts that are not of “a solid color of navy blue, black, any shade of khaki, or white”;
“shorts, skirts, or skorts” that do not “reach mid-thigh or longer”;
“bottoms made with stretch knits, flannel, or fleece such as sweatpants, jogging pants, or any type of athletic clothing” as well as “baggy, sagging, or form-fitting pants”;
tops that are not “a solid color” and are not “crew neck [style], polo style with buttons, oxford style, or turtleneck”;
tops with writing on them and “logos larger than the size of a ‘quarter’…except ‘Highlands’ logos or other ‘Highlands Spirit Wear’”;
tops that are not “of an appropriate size and fit”; and
“form-fitting or baggy shirts” or “any material that is sheer or lightweight enough to be seen through.”

According to the policy,

The objective of this dress code is to provide an appropriate educational environment while allowing students to dress comfortably within limits to facilitate learning. Students’ attire can have a positive or negative effect on the learning process, contribute to students’ success,746 and generate a safe and positive learning environment. We expect students to maintain the type of appearance that is not distracting to students, teachers, or the educational process of the school. Parents and children are equally responsible for the appearance of the child. There is appropriate and inappropriate attire for all of life’s activities. Keeping these ideas in mind, please help your student adhere to these guidelines.

On November 21, 2001, Robert Blau, a lawyer, filed this action against the Fort Thomas Public School District on his and Amanda’s behalf in federal court. The lawsuit sought to invalidate the dress code on its face (which is to say, in essentially all of its applications) and as applied (which is to say, in its application to Amanda and Robert Blau). The Blaus did not claim that the dress code was incompatible with any religious beliefs that they may hold. In addressing whether there was “any particular message” that she wished to convey through her clothing, Amanda stated that there was not. She opposes the dress code because she wants to be able to wear clothes that “look[] nice on [her],” that she “feels good in” and that express her individuality. Robert Blau likewise has not pointed to any particular message that the dress code prohibits Amanda from conveying, instead complaining that the dress code inhibits her “ability to wear clothing that she likes.”

Before the 2002 school year had begun and while this lawsuit was pending, the Highlands Council modified the dress code. The amendment loosened the dress code in some respects (pants, shorts or skirts may be any solid color, and striped and patterned tops are permitted) and tightened it in others (blue jeans are prohibited, “clothing that promotes drugs, alcohol, tobacco, sex, or is offensive or degrading” is prohibited and tops with “low, scoop, plunging or revealing necklines” are prohibited).

III

In turning to the merits of the First Amendment challenge, the difficult question here is not one of outcome. If, as Boroff v. Van Wert City Board of Education (6th Cir. 2000) holds, a school district court may enforce a dress code that bans “offensive illustrations,” and if it may bar a student from wearing nihilistic Marilyn Manson T-shirts under that regulation, it surely follows that a school district may enforce a dress code that regulates the types of pants and tops students may wear and may do so with respect to a student who does not wish to convey “any particular message” through her clothing but simply wants to wear clothes that “look nice” on her. The difficult question under these circumstances is not whether Amanda Blau’s claim can succeed; it cannot. It is whether the First Amendment covers this kind of claim at all.

The protections of the First Amendment do not generally apply to conduct in and of itself. To bring a free-speech claim regarding actions rather than words, claimants must show that their conduct “conveys a particularized message” and “the likelihood [is] great that the message [will] be understood by those who view[] it.” The threshold is not a difficult one, as “a narrow, succinctly articulable message is not a condition of constitutional protection.”

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But the Supreme Court’s expressive-conduct cases, whether in the school setting or not, offer poor analogies to Amanda Blau’s claim. In Tinker, the Court held that the school district could not prevent students from wearing armbands to protest the Vietnam War. In United States v. O’Brien, the Court held that the act of burning a draft card to protest the Vietnam War implicated the First Amendment but could nonetheless be proscribed because the government had a substantial interest in the regulation unrelated to the suppression of expression. To say that Amanda Blau’s desire to wear clothes she “feels good in,” as opposed to her desire to express “any particular message,” fits within this line of cases gives the invocation of precedent a bad name. In one of these cases, in point of fact, the Court expressly contrasted the right to wear a black arm band, a “direct, primary First Amendment right[] akin to ‘pure speech,’” with the permissible “regulation of the length of skirts or the type of clothing, to hair style, or deportment.” Tinker. Under these circumstances, the Blaus have not met their burden of showing that the First Amendment protects Amanda’s conduct—which in this instance amounts to nothing more than a generalized and vague desire to express her middle-school individuality. As Amanda stated in her deposition, she does not wish to convey any particular message, but wishes only to wear clothes that she thinks “look[] nice on [her]” and that “she feels good in.” And Robert Blau has not pointed to any particularized message that Amanda wishes to convey. In his deposition, he stated only that the dress code hinders “her own ability to wear clothing that she likes” but did not suggest what message the clothing she likes would convey. It is not lost on us that, in the eyes of a 12-year old, “looking nice” and “feeling good” about the clothing one wears are important and, rightly or wrongly, may be enough to make or break a kid’s day. Style and taste in clothing, it also is true, may be one of the first ways in which children learn to express their individuality and engage in self-expression. And, as every parent knows (or will soon learn), it is often through choices in clothing that children first learn how to challenge authority, though usually authority in the form of their parents, not their school (which perhaps is the reason why parents urge schools to adopt dress codes in the first place).

Even so, the First Amendment does not protect such vague and attenuated notions of expression—namely, self-expression through any and all clothing that a 12-year old may wish to wear on a given day. To meet the modest requirements for bringing an expressive-conduct claim within the umbrella of protection provided by the First Amendment, the claimant at a minimum must show that the desired conduct (e.g., the desired clothing) can fairly be described as “imbued with elements of communication,” which “conveys a particularized message” that will “be understood by those who view[] it.” The Blaus have not made that showing.

While this analysis explains why the Blaus may not bring a First Amendment challenge on their own behalf, it does not end the matter. In the context of First Amendment challenges, unlike most areas of constitutional litigation, a claimant may seek protection not only on her own behalf but on behalf of others as well. But “a law’s application to protected speech [must] be substantial, not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, before applying the strong medicine of overbreadth748 invalidation.” “The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”

The overbreadth doctrine, then, permits litigants like Robert Blau (and Amanda) to invoke the rights of others and to invalidate the dress code so long as they can show that it suppresses a “substantial” amount of protected conduct engaged in by others. The ability to raise this kind of challenge, however, is one thing; the ability to win it is another.

Under the traditional test for assessing restrictions on expressive conduct, a regulation will be upheld if (1) it is unrelated to the suppression of expression, (2) it “furthers an important or substantial government interest,” and (3) it “does not burden substantially more speech than necessary to further [the] interest[].” The Blaus cannot satisfy this test, much less show that the dress code suppresses a “substantial” amount of protected conduct.

First, the 2001 dress code exists in spite of, not because of, its impact on speech or expressive conduct. The dress code’s stated purpose is to “create unity, strengthen school spirit and pride, and focus[] attention upon learning and away from distractions,” which is consistent with the Council’s statutory mandate to implement policies that “provide an environment to enhance the students’ achievement and help the school meet [its] goals.” And in promulgating the dress code based on the experiences of other school districts with similar regulations, school officials thought that the regulation would “enhance[] school safety, improve[] the learning environment, promote[] good behavior, reduce[] discipline problems, improve[] test scores, improve[] children’s self-respect and self-esteem, bridge[] socio-economic differences between families, help[] eliminate stereotypes and produce[] a cost savings for families.” Consistent with these First-Amendment-benign objectives, the dress code does not regulate any particular viewpoint but merely regulates the types of clothes that students may wear. (The Blaus do not complain about the one seemingly content-based component of the 2001 dress code—its prohibition of any logos larger than the size of a quarter save for Highlands logos or other “Highlands Spirit Wear.”)

In response, the Blaus claim that all of this is pretext, that the real purpose of the code is to suppress student expression. But the only evidence the Blaus offer to bolster this contention is the statement of Highlands principal Mary Adams, who said that even though Highlands is a high-achieving school in terms of student accomplishment, it does not “mean we can’t do something else to let the students know what we feel is appropriate.” Merely because a dress code conveys what a school district believes is “appropriate” does not mean that the regulation exists in order to suppress speech or turns on the expressive quality of the clothing at issue. Again, the regulation is viewpoint and essentially content neutral. The only way in which a regulation of “appropriate” middle-school clothing can fairly be described as speech suppressive is if everything sartorial is speech expressive. That is not true.

Second, the dress code furthers important governmental interests. They include: bridging socio-economic gaps between families within the school district, focusing attention on learning, increasing school unity and pride, enhancing school safety, promoting good behavior, reducing discipline749 problems, improving test scores, improving children’s self-respect and self-esteem, helping to eliminate stereotypes and producing a cost savings for families. These are all important governmental interests, and the Blaus do not contend otherwise.

Nonetheless, the Blaus counter, the problems that the dress code seeks to address are not present at Highlands because it is already a high-achieving school with some of the top test scores in the State and the school has few discipline problems, episodes of clothing-based fights or safety concerns. This response has at least two flaws. For one, it addresses just some of the school district’s interests while neglecting to mention the others. It says nothing at all, for example, about bridging socio-economic differences within a school district—which would always seem to be a sensible reason for a dress code and would invariably satisfy this modest requirement. For another, when a school district attains certain levels of achievement, it hardly means that it no longer has an interest in improving the educational environment further. In a world in which most people and institutions are either moving forward or backward, a school district cannot be faulted for searching for new ways to be excellent.

The school district, moreover, presented affidavits from three teachers who agreed that the dress code has had a positive impact on the Highlands learning environment. Marie Shields stated that the dress code has made it easier for teachers to “keep the focus of the students on instruction rather than on what other students are wearing,” has reduced peer pressure on students to “dress right,” and has led to fewer “disruptions and distractions from students wearing revealing, distracting, and inappropriate clothing.” Christy Petroze stated that “students are more focused on learning in class and not on what other students are wearing,” that she has been able to be more focused on teaching “because [she has] not been distracted by students wearing inappropriate or revealing clothing,” and that students “seem to take school more seriously” and are “free from the concept of one-upmanship…that existed prior to the enactment of the [dress code].” Edith Mariani noted that the dress code has “increased school spirit and pride” and has “increased the students’ respect for themselves and their respect for others.”

Nor, under the final O’Brien inquiry, does the dress code suppress substantially more expressive conduct than is necessary to further its interests. As an initial matter, the Blaus have offered few examples of ways in which the dress code affects cognizable expressive conduct—except, as noted at oral argument, that the code limits the ability of students to wear t-shirts expressing their interests in music, the arts or politics. Beyond this, however, the dress code applies only to middle-school students during school hours; they remain free to dress as they (and their parents) wish in the evenings and on the weekends. And to the extent the dress code curbs expressive activity during the school day, the students have other outlets of expression during school hours: They may write for the school newspaper (which Amanda to her credit has done); they may express themselves by joining other extra-curricular activities; they may express themselves through school assignments; they may associate with whomever they (and their parents) please; and they may still wear buttons expressing other viewpoints, as permitted by the dress code. In the end, the school district has750 satisfied all three prongs of the O’Brien test, which necessarily establishes that the Blaus have not met their burden of showing that they are entitled to “the strong medicine of overbreadth invalidation.”

One other observation is vital to this analysis. It long has been the case that constitutional claims generally receive less rigorous review in the secondary and middle school setting than they do in other settings. In the First Amendment arena and other arenas as well, the Supreme Court thus has frequently emphasized that public schools have considerable latitude in fashioning rules that further their educational mission and in developing a reasonable fit between the ends and means of their policies. All of these things considered, the Blaus’ First Amendment claim fails as a matter of law.

The Blaus next argue that the dress code’s prohibition on blue jeans violates Amanda’s substantive due process rights under the Fourteenth Amendment. We disagree.

The first (and often last) issue in this area is the proper characterization of the individual’s asserted right. Governmental actions that infringe a fundamental right receive strict scrutiny. Otherwise, they receive rational-basis review, which requires them only to be “rationally related to a legitimate state interest.”

Amanda faces an uphill battle in claiming that strict scrutiny applies. The list of fundamental rights “is short,” it does not include the wearing of dungarees and “the Supreme Court has expressed very little interest in expanding” the list. Nor do the fundamental rights that the Court has recognized offer a flattering analogy to Amanda’s claim. Whether it be the right to marry, the right to have children, the right to direct the educational upbringing of one’s child, the right to marital privacy, the right to use contraception, the right to bodily integrity or the right to abortion, none of these fundamental rights has much, if anything, in common with the right to wear blue jeans. And the Court has expressly counseled lower courts to be “reluctant to expand the concept of substantive due process because guideposts for decision making in this unchartered area are scarce and open-ended.”

Neither does the test for identifying a new fundamental right—those rights that are “deeply rooted in this Nation’s history and tradition,” or so “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed,” advance Amanda’s cause. In the final analysis, the Blaus have not established that their claim warrants strict scrutiny and, for reasons noted earlier, they cannot tenably claim that the dress code lacks a rational basis.

Robert Blau next argues that the dress code interferes with his fundamental right to direct the education of his child. We again disagree.

For some time and for considerably longer than most individual constitutional rights have existed, the Supreme Court has recognized a751 “fundamental right of parents to make decisions concerning the care, custody and control of their children.” And while this right plainly extends to the public school setting, it is not an unqualified right.

The critical point is this: While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to direct how a public school teaches their child. Whether it is the school curriculum, the hours of the school day, school discipline, the timing and content of examinations, the individuals hired to teach at the school, the extracurricular activities offered at the school or, as here, a dress code, these issues of public education are generally “committed to the control of state and local authorities.” As these cases and the reasoning behind them make clear, Robert Blau does not have a fundamental right to exempt his child from the school dress code. And he has fallen far short of showing that the dress code fails to satisfy rational-basis review.

NOTES AND QUESTIONS

1. The Sixth Circuit clearly did not find the Blaus’ substantive due process/fundamental rights arguments convincing. Were you convinced by its explanation of why not? You will see more discussion of the parental role in shaping school curricula and policies in Chapter 10.

2. The court noted that the Blaus had not “complain[ed] about the one seemingly content-based component of the 2001 dress code—its prohibition of any logos larger than the size of a quarter save for Highlands logos or other ‘Highlands Spirit Wear.’” If the Blaus had squarely presented this issue, would that have changed the outcome? Not necessarily, suggested the Fifth Circuit in Palmer v. Waxahachie Independent School District, 579 F.3d 502 (5th Cir. 2009). There, the court held that a school dress code that prohibited all messages on shirts, with a special exception for small logos on shirts and “campus principal approved” shirts that promote school clubs, organizations, athletic teams, or “school spirit,” still qualified as content-neutral. Moreover, the court held that the code survived intermediate scrutiny because it was substantially related to the important governmental interest of improving the educational process.

752

1 The only suggestions of fear of disorder in the report are these:

A former student of one of our high schools was killed in Viet Nam. Some of his friends are still in school and it was felt that if any kind of a demonstration existed, it might evolve into something which would be difficult to control.

Students at one of the high schools were heard to say they would wear arm bands of other colors if the black bands prevailed.

Moreover, the testimony of school authorities at trial indicates that it was not fear of disruption that motivated the regulation prohibiting the armbands; the regulation was directed against “the principle of the demonstration” itself. School authorities simply felt that “the schools are no place for demonstrations,” and if the students “didn’t like the way our elected officials were handling things, it should be handled with the ballot box and not in the halls of our public schools.”

2 The two pages deleted from the newspaper also contained articles on teenage marriage, runaways, and juvenile delinquents, as well as a general article on teenage pregnancy. Reynolds testified that he had no objection to these articles and that they were deleted only because they appeared on the same pages as the two objectionable articles.

3 The Court’s opinion ignores the fact that the legalization of marijuana is an issue of considerable public concern in Alaska. The State Supreme Court held in 1975 that Alaska’s constitution protects the right of adults to possess less than four ounces of marijuana for personal use. In 1990, the voters of Alaska attempted to undo that decision by voting for a ballot initiative recriminalizing marijuana possession. At the time Frederick unfurled his banner, the constitutionality of that referendum had yet to be tested. It was subsequently struck down as unconstitutional.

4 Such a reading would be consistent with the Policy’s very broad statement of purpose, which notes that “members of the school community are expected to treat each other with mutual respect” and that “disrespect among members of the school community is unacceptable behavior.”

5 In his complaint, Harper alleges that he believes “the true purpose” of the “Day of Silence” was “to endorse, promote and encourage homosexual activity.”

6 On the “Day of Silence,” participating students wore duct tape over their mouths to symbolize the silencing effect of intolerance upon gays and lesbians; these students would not speak in class except through a designated representative. Some students wore black T-shirts that said “National Day of Silence” and contained a purple square with a yellow equal sign in the middle. The Gay-Straight Alliance, with the permission of the School, also put up several posters promoting awareness of harassment on the basis of sexual orientation.

7 We note that conflicts over homosexuality at Poway High School have not been limited to the incidents surrounding a “Day of Silence.” Two former students recently won a suit against the School for failing to protect them from students who harassed them because they are gay. See Dana Littlefield, Two Gay Students Were Harassed, Jury Finds, San Diego Union-Trib., June 9, 2005, at B2. During the trial, one of the students testified that Poway “students repeatedly called him names, shoved him in the hallways, threw food at him and spit on him,” and “that he heard other students make disparaging remarks about gays and lesbians on a nearly daily basis.” Id.

8 We do not consider here whether remarks based on gender warrant similar treatment, preferring to leave that question to another time. We recognize, however, that problems of gender discrimination remain serious and that they exist throughout learning institutions, from the public and religious schools to institutions of higher learning, not excluding the most prominent institutions in the nation.

Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority. In any event, any verbal assault targeting majorities that might justify some form of action by school officials is more likely to fall under the “substantial disruption” prong of Tinker or under the Fraser rule permitting schools to prohibit “plainly offensive” speech.

9 This “reasonable forecast” test applies both to instances of prior restraint, where school authorities prohibit or limit expression before publication, and to cases like this one, where Avery’s disqualification from student office followed as a consequence of the post she had already made available to other students.

10 McGonigle testified that after this lawsuit was filed, there was a general decline in student discipline and that he believed this litigation itself encouraged other students to misbehave because they thought they could simply file a lawsuit to alleviate any trouble. McGonigle’s testimony in this regard is irrelevant to the issues before this Court because these disruptions did not arise out of the creation of the profile itself, but rather, were the direct result of the School District’s response to the profile and the ensuing litigation. This testimony, therefore, is not relevant to determining the level of disruption that the profile caused in the school.

11 The dissent concludes that our decision creates a circuit split with the Court of Appeals for the Second Circuit, positing that that court has determined “that off-campus hostile and offensive student internet speech that is directed at school officials results in a substantial disruption of the classroom environment.” We disagree, largely because the dissent has overstated our sister circuit’s law. Each case applying Tinker is decided on its own facts.

12 The School District seizes upon language in Tinker that is arguably dicta, claiming that it was justified in abridging J.S.’s First Amendment rights because the profile defamed McGonigle. We are not aware of any decisions analyzing whether this language applies to anyone other than “students.” In any event, we agree with J.S. that, as a matter of law, McGonigle could not succeed in his claim that the profile violated his right to be free from defamation. See Hustler v. Falwell, 485 U.S. 46, 57 (1988) (holding that a libel claim cannot survive where no reasonable observer can understand the statements to be describing actual facts or events).

753

The First Amendment begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech.…” These three clauses—the Establishment Clause, the Free Exercise Clause, and the Speech Clause—shape the topic of “religion in the schools” in complex and overlapping ways. Painting with a broad brush, one might summarize the basic principles as follows.

The Establishment Clause limits the government’s ability to promote religion in the public schools (and elsewhere). The schools may “teach about” religion, but they may not “teach religion” as true, nor may they lead religious observances. The Establishment Clause also limits the government’s ability to finance private religious activity (including private religious schooling), though in recent years those limits have been sharply curtailed so that the government now has significant leeway to fund religious activity through even-handed programs that include both secular and religious beneficiaries.

The Free Exercise Clause protects private religious activity from at least some kinds of government interference. Religious claimants may ask courts to exempt them from school policies on free exercise grounds, or legislative and executive bodies may decide to grant religious exemptions on their own in the service of religious liberty.

The Speech Clause protects religious speech to the same degree as other speech, and thus some of the most important religious activity may be protected from government regulation as speech rather than as religion.

The most difficult issues involving religion and schooling often implicate two or three of these principles. To take but one example, consider a school’s choice of curriculum. The Establishment Clause limits what a public school may teach. Religious students who object to the school’s curricular choices may argue that exposure to the school’s message burdens their free exercise rights. Both students and teachers also have speech rights. Do these speech rights give teachers or students the right to convey religious messages in the school environment that the state could not convey on its own behalf? Because of the many interactions between the two Religion Clauses and the Speech Clause, the full range of “religion in the schools” issues is addressed in the sequence of Chapters 8754 through 10. Chapter 8 covered student speech principles, and a good deal of the most controversial student speech involves religion. Curricular controversies have many facets, and they are treated comprehensively in Chapter 10. This chapter provides the most detailed treatment of the Establishment and Free Exercise Clauses, with special attention to the two “religion in the schools” topics that have been most frequently addressed by the Supreme Court: school prayer and government funding of private religious education.

Section A examines the perennially controversial topic of school prayer. It begins by briefly recounting the history of public schooling in nineteenth-century America, a history which provides crucial background for understanding both the law of school prayer and the law of school funding. The school prayer cases are an ideal place to start because they show us how the Supreme Court has understood the history and purposes of the Establishment Clause. The prayer cases also introduce us to the three doctrinal “tests” most commonly used to decide Establishment Clause cases: the Lemon test, the endorsement test, and the coercion test.

Section B moves from the limits on religious socialization explored in the prayer cases to consider the limits on political socialization presented in the case law concerning the Pledge of Allegiance. The main case is the Supreme Court’s famous decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), where the Court upheld the right of Jehovah’s Witnesses to refuse to pledge allegiance to the flag. Section C briefly touches on Establishment Clause questions raised by matters such as religious displays at school and the use of religious music at school concerts.

Section D narrates, in compressed form, the Supreme Court’s changing views on state funding of private religious education. It begins with the Court’s seminal decision in Everson v. Board of Education, 330 U.S. 1 (1947), which contains the seeds of all the doctrinal developments that would follow in this area. Everson described the Establishment Clause as erecting a “wall of separation between church and state,” a metaphor the Court has now abandoned in favor of categories like “formal neutrality” and “true private choice.” These doctrinal shifts culminate in the Court’s approval of vouchers for private religious schools in Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

Section E of the chapter turns away from the Establishment Clause to examine the history and current doctrine of the federal Free Exercise Clause, using Wisconsin v. Yoder, 406 U.S. 205 (1972), to set out the main themes of free exercise law. The section then briefly examines conflicts between the school environment and students’ and teachers’ obligations of religious practice.

Finally, Section F deals with the “equal access” line of cases. The basic problem in these cases arises when a religious group wishes to use public education facilities under a general policy granting access to some segment of the public. Does granting access violate the Establishment Clause by aiding religious activity, or would excluding religious groups constitute discrimination based on the content of their religious speech? As you will see, the Court has adopted the second answer.

755

A. SOCIALIZATION THROUGH RITUAL: SCHOOL PRAYER

Although the law regarding school prayer has been relatively well established for 50 years now, the topic remains controversial. This section traces the Supreme Court’s cases on the topic of state-sponsored school prayer, beginning with a very brief historical overview.

1. A Quick Look at the Rise of the “Nonsectarian” Common School

Education is, among other things, an enterprise in socialization. We expect the schools to prepare children to be productive and responsible citizens and neighbors and to nurture the moral and intellectual virtues that democratic governance demands. This point makes it unsurprising that throughout history, many have thought religious training an essential part of schooling. George Washington spoke for his age in his 1796 Farewell Address:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness—these firmest props of the duties of men and citizens.¹

Prior to 1830, American education was predominantly both private and religious. Government aid, where present, flowed to both secular and religious private schools. Michael W. McConnell, Education Disestablishment: Why Democratic Values Are Ill-Served by Democratic Control of Schooling at 95, in Moral and Political Education (Stephen Macedo & Yael Tamir eds., 2002). Over the course of the mid- to late nineteenth century, the common school movement gave rise to a system of free public schools that would educate all children in a common, “nonsectarian” environment. The early history of the common schools is essential background for understanding controversies regarding school prayer (Section A of this chapter) and the funding of private religious education (Section D of this chapter).

As immigration increased over the course of the nineteenth century, the “Americanization” of these immigrants became a priority for the new public schools. Making children into citizens would require moral education, and moral education would necessarily be religious. Accordingly, “nonsectarian” did not mean secular. Instead, the religion of the common schools was a sort-of least-common-denominator Protestantism. The most famous common school reformer, Horace Mann, regarded reading from the Bible (without commentary) as the heart of moral education in the public schools: “Our system earnestly756 inculcates all Christian morals; it founds its morals on the basis of religion; it welcomes the religion of the Bible; and, in receiving the Bible, it allows it to do what it is allowed to do in no other system—to speak for itself.” John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 298 (2001) (quoting Horace Mann, Twelfth Annual Report of the Board of Education, Together with the Twelfth Annual Report of the Secretary of the Board 116-117 (1849)).

While the new “common” public schools managed to paper over differences among Protestant denominations, the rapidly expanding population of Catholic immigrants was not so easily satisfied. They criticized the public schools as de facto Protestant establishments. Catholics objected that the exclusive use of the Protestant King James Bible and the practice of unmediated Bible reading were hardly nonsectarian; they also complained about anti-Catholic bias throughout the curriculum. For example, a petition from Catholics in New York noted that school texts regularly spoke of “Popery,” a term “known and employed as one of insult and contempt towards the Catholic religion.” McConnell, supra, at 108 (quoting Petition of the Catholics of New York (1840)).

Unwilling to accept the Protestantism of the common schools, Catholics demanded that the public schools accommodate their religious needs (e.g., by stopping the practice of Bible reading) or that the state provide funding to support private Catholic schools. They lost on both fronts. Requests for accommodation within the public schools produced significant backlash. In 1844, the Philadelphia school board ruled that Catholic children would be allowed to use the Douay translation of the Bible rather than the King James translation. Public riots in response to the decision burned down two Catholic churches and killed more than 50 people. Michael Dehaven Newsom, Common School Religion: Judicial Narratives in a Protestant Empire, 11 S. Cal. Interdisc. L.J. 219, 242 (2002). At the same time, the Catholic Church committed itself to providing Catholic schools in every parish and urged Catholic parents not to send their children to the public schools. If the public schools were to remain Protestant, Catholics argued that public money should also be used to support private Catholic schools. These requests aroused intense political opposition from Protestant defenders of the common school. Common school proponents viewed Catholicism as authoritarian superstition that was incompatible with democratic American ideals and contrasted the public schools with the “sectarian” education that would be afforded in Catholic schools. Horace Bushnell, a common school advocate in Connecticut, wrote that public funding of parochial schools would mean that Catholic children would be “instructed mainly into the foreign prejudices and superstitions of their fathers, and the state, which proposed to be clear of all sectarian affinities in religion, will pay the bills!” McConnell, supra, at 110 (quoting Common Schools: A Discourse on the Modifications Demanded by the Roman Catholics 11 (1853)).

The upshot of Catholic challenges to the pan-Protestantism of the public schools was that “no public money for nonpublic schools” became a popular political position in the mid-nineteenth century without any help from the federal Establishment Clause. While these controversies showed the difficulty757 of “teaching religion” in a religiously neutral way, they did not change the public schools’ insistence on teaching “common” (Protestant) religious values. Most communities wanted their schools to “teach religion,” not merely to teach about religion. Judges—so central in contemporary disputes about religion in the schools—had little to say about this. The Establishment Clause of the federal Constitution applied by its terms only to federal legislation—“Congress shall make no law respecting an establishment of religion”—and the U.S. Supreme Court had decided only a handful of cases interpreting the clause at the midpoint of the twentieth century. Since public education was a state and local function, the Court had little to say about it.

All this changed with the Supreme Court’s 1947 decision in Everson v. Board of Education, 330 U.S. 1 (1947). Doctrinally, Everson is the first Establishment Clause case governing the public funding of private religious schools, and it is treated in that light in Section D below. For present purposes, Everson is important for two reasons. First, it held that the Establishment Clause applied to the states through incorporation into the Fourteenth Amendment’s Due Process Clause. Second, it began the Court’s use of the “separation of church and state” (a phrase drawn from a letter Thomas Jefferson wrote to Baptists in Danbury, Connecticut) as an organizing principle of Establishment Clause jurisprudence. If the Establishment Clause truly required a wall of separation between church and state, the cozy de facto Protestant establishment of the American public schools was ripe for reexamination.

2. The Basic Prohibition Against State-Sponsored School Prayer: Engel and Schempp

Engel v. Vitale

370 U.S. 421 (1962)

Mr. Justice Black delivered the opinion of the Court.

The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York directed the School District’s principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day:

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”²

This daily procedure was adopted on the recommendation of the State Board of Regents. These state officials composed the prayer which they recommended and published as a part of their “Statement on Moral and Spiritual Training in the Schools,” saying: “We believe that this Statement will be758 subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program.”

[Parents of ten students brought suit, arguing that recitation of the Regents’ prayer violated the Establishment Clause. The New York courts upheld the prayer so long as students were not compelled to participate. The Supreme Court granted certiorari.]

We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. [W]e think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause. Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support for government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate.

NOTES AND QUESTIONS

1. Justice Black devotes much of his opinion to explaining the historical values and policies that support the Establishment Clause. What are those values759 and policies? Can you think of other policies that might support the Establishment Clause (as interpreted by the Court)?

2. In an omitted portion of his opinion, Justice Black wrote that the founders “knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either.…It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.” No doubt he (correctly) anticipated this charge would be flung at the Court and wished to respond in advance. Negative reaction was indeed swift and loud, as is engagingly chronicled in Joan DelFattore, The Fourth R: Conflicts over Religion in America’s Public Schools ch. 5 (2004). One congressman stated on the House floor that he knew “of nothing in my lifetime that could give more aid and comfort to Moscow than this bold, malicious, atheistic, and sacrilegious twist of this unpredictable group of uncontrolled despots.” Id. at 80.

3. Extending Engel. The Court reaffirmed and extended Engel in School District of Abington Township v. Schempp, 374 U.S. 203 (1963), which struck down the practice of reading from the Bible (without commentary) at the beginning of the school day. As Justice Goldberg observed in his concurrence, “[t]he state has ordained and has utilized its facilities to engage in unmistakably religious exercises—the devotional reading and recitation of the Holy Bible—in a manner having substantial and significant import and impact. That it has selected, rather than written, a particular devotional liturgy seems to me without constitutional import.” Id. at 307.

Schempp and Engel together established that daily, state-sponsored religious exercises in the public schools—prayers or “devotional” Bible readings—are unconstitutional no matter how voluntary the participation or how nondenominational the prayer. The Court has remained firm on this point despite continuing public criticism and several failed efforts at amending the Constitution to allow school prayer. See DelFattore, supra, at 106-126. The school prayer decisions have had broader support within the academy, even among commentators generally sympathetic to calls for a greater role for religion in American public life. For example, Stephen Carter, a Yale law professor and author of The Culture of Disbelief (1993), disagrees with some of the Court’s later prayer decisions but writes that “the case against organized classroom prayer is both straightforward and wide ranging: the state cannot compel attendance at schools that begin the day with prayer because doing so profoundly interferes with the religious liberty of parents—the ability to project their religious tradition into the future by raising their children in their religion.” Stephen L. Carter, Parents, Religion, and Schools, 27 Seton Hall L. Rev. 1194, 1215 (1997).

4. Compliance. A firm command from the U.S. Supreme Court does not automatically translate into action on the ground. In some areas of the country, compliance with the school prayer decisions was relatively swift and complete. In other communities (especially, but not exclusively, in the South), the decisions were actively resisted or ignored. As the authors of an early study put it, the760 school prayer cases were “the opening of a long struggle in which lower level power holders often have the last word.” Kenneth M. Dolbeare & Philip E. Hammond, The School Prayer Decisions: From Court Policy to Local Practice 153 (1971) (quoted in DelFattore, supra, at 104).

5. Taking religion out of the schools. Negative reaction to these cases has often crystallized around claims that the Court has taken God (the Bible, religion) out of the public schools. Yet note the following passage from Justice Clark’s majority opinion in Schempp:

It is insisted that unless these religious exercises are permitted a “religion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

Id. at 225. Justice Clark’s opinion draws a distinction between “teaching religion (as true)” or leading religious exercises and “teaching about religion.” The first two practices are forbidden, while the latter is both permissible and appropriate. This means, for example, that whether public schools may assign study of the Bible depends on the context and purpose of that study. As in the case of compliance with the basic ban on school prayer, school districts have reacted differently to the distinction between forbidden “teaching religion” and permissible “teaching about religion.” Some studies suggest that some school districts and textbooks during the 1970s and 1980s largely excised religion from the curriculum, which is both regrettable and constitutionally unnecessary. See Jay Wexler, Preparing for the Clothed Public Square: Teaching About Religion, Civic Education, and the Constitution, 43 Wm. & Mary L. Rev. 1159, 1179-1183 (2002). At the other end of the spectrum, school districts have offered classes that purported to study the Bible as literature or history, but were actually religious instruction. See, e.g., Crockett v. Sorenson, 568 F. Supp. 1422 (W.D. Va. 1983) (Bible classes unconstitutional). Further discussion of the role of religion in the curriculum is found in Chapter 10.

6. Toward an Establishment Clause “test.” The language of the Establishment Clause, like most constitutional language, provides only very general guidance in deciding cases. Limited to that language, courts would presumably ask what counts as an “establishment” and how close to an “establishment” a law must come before it would count as “respecting” an establishment of religion. Law students know, however, that the Court likes to develop doctrinal “tests” that (hopefully) help to shape argument and guide decision. Justice Clark’s majority opinion in Schempp contains the seeds of the “Lemon test” announced in Lemon v.761 Kurtzman, 403 U.S. 602 (1971): “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ” While Lemon has never been overruled, from the 1980s onward criticisms of Lemon both within and outside the Court have been a driving force in Establishment Clause jurisprudence, as some of the discussion in the next case illustrates. Marsh v. Chambers, 463 U.S. 783 (1983), appeared to cast particular doubt on the Lemon test’s application to state-sponsored prayers. In Marsh, the Court had upheld prayers by a state chaplain that opened each day’s session of the Nebraska legislature. The Court based its holding on long historical acceptance of the practice of legislative prayer and did not invoke Lemon or any alternative doctrinal test.

3. Moments of Silence

Some religious conservatives regarded Engel and Schempp as having banned all prayer in the public schools. (Is this accurate?) One prominent strategy for “returning prayer to the schools” was the introduction of laws calling for a moment of silence at the beginning of each school day. Lower courts had divided on the constitutionality of moment of silence laws. The issue reached the Supreme Court in 1985.

Wallace v. Jaffree

472 U.S. 38 (1985)

Justice Stevens delivered the opinion of the Court.

At an early stage of this litigation, the constitutionality of three Alabama statutes was questioned: (1) §16-1-20, enacted in 1978, which authorized a 1-minute period of silence in all public schools “for meditation”;³ (2) §16-1-20.1, enacted in 1981, which authorized a period of silence “for meditation or voluntary prayer”;⁴ and (3) §16-1-20.2, enacted in 1982, which authorized762 teachers to lead “willing students” in a prescribed prayer to “Almighty God…the Creator and Supreme Judge of the world.”⁵

[The Court explained that the constitutionality of the first statute had not been challenged and that it had already affirmed the Eleventh Circuit’s judgment that the third statute was unconstitutional. Thus the only issue in this case was the constitutionality of the middle statute: §16-1-20.1. In proceedings below, the district court had upheld the statute on the basis of historical evidence that “the [E]stablishment [C]lause of the [F]irst [A]mendment to the United States Constitution does not prohibit the state from establishing a religion.” Unsurprisingly, the Eleventh Circuit reversed. In the omitted section II of the opinion, Justice Stevens reaffirmed the Court’s earlier holdings that the Religion Clauses of the First Amendment apply to the states.]

III

[I]n Lemon v. Kurtzman, 403 U.S. 602 (1971), we [set out the following test for Establishment Clause cases:] “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’ ”

It is the first of these three criteria that is most plainly implicated by this case. As the District Court correctly recognized, no consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion.

In applying the purpose test, it is appropriate to ask “whether government’s actual purpose is to endorse or disapprove of religion.” In this case, the answer to that question is dispositive. For the record not only provides us with an unambiguous affirmative answer, but it also reveals that the enactment of §16-1-20.1 was not motivated by any clearly secular purpose—indeed, the statute had no secular purpose.

The sponsor of the bill that became §16-1-20.1, Senator Donald Holmes, inserted into the legislative record—apparently without dissent—a statement indicating that the legislation was an “effort to return voluntary prayer” to the763 public schools. Later Senator Holmes confirmed this purpose before the District Court. In response to the question whether he had any purpose for the legislation other than returning voluntary prayer to public schools, he stated: “No, I did not have no other purpose in mind.” The State did not present evidence of any secular purpose.⁶

The unrebutted evidence of legislative intent contained in the legislative record and in the testimony of the sponsor of §16-1-20.1 is confirmed by a consideration of the relationship between this statute and the two other measures that were considered in this case. The District Court found that the 1981 statute and its 1982 sequel had a common, nonsecular purpose. The wholly religious character of the later enactment is plainly evident from its text. When the differences between §16-1-20.1 and its 1978 predecessor, §16-1-20, are examined, it is equally clear that the 1981 statute has the same wholly religious character.

There are only three textual differences between §16-1-20.1 and §16-1-20: (1) the earlier statute applies only to grades one through six, whereas §16-1-20.1 applies to all grades; (2) the earlier statute uses the word “shall” whereas §16-1-20.1 uses the word “may”; (3) the earlier statute refers only to “meditation” whereas §16-1-20.1 refers to “meditation or voluntary prayer.” The first difference is of no relevance in this litigation because the minor appellees were in kindergarten or second grade during the 1981-1982 academic year. The second difference would also have no impact on this litigation because the mandatory language of §16-1-20 continued to apply to grades one through six. Thus, the only significant textual difference is the addition of the words “or voluntary prayer.”

The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the schoolday. The 1978 statute already protected that right, containing nothing that prevented any student from engaging in voluntary prayer during a silent minute of meditation. Appellants have not identified any secular purpose that was not fully served by §16-1-20 before the enactment of §16-1-20.1. Thus, only two conclusions are consistent with the text of §16-1-20.1: (1) the statute was enacted to convey a message of state endorsement and promotion of prayer; or (2) the statute was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act.

We must, therefore, conclude that the Alabama Legislature intended to change existing law and that it was motivated by the same purpose that the Governor’s answer to the second amended complaint expressly admitted; that the statement inserted in the legislative history revealed; and that Senator Holmes’ testimony frankly described. The legislature enacted §16-1-20.1, despite the existence of §16-1-20 for the sole purpose of expressing the State’s endorsement of prayer activities for one minute at the beginning of each764 schoolday. The addition of “or voluntary prayer” indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.

The judgment of the Court of Appeals is affirmed.

Justice O’Connor, concurring in the judgment.

Nothing in the United States Constitution as interpreted by this Court or in the laws of the State of Alabama prohibits public school students from voluntarily praying at any time before, during, or after the schoolday. I write separately to identify the peculiar features of the Alabama law that render it invalid, and to explain why moment of silence laws in other States do not necessarily manifest the same infirmity.

It once appeared that the Court [in Lemon] had developed a workable standard by which to identify impermissible government establishments of religion. Despite its initial promise, the Lemon test has proved problematic. Justice Rehnquist today suggests that we abandon Lemon entirely, and in the process limit the reach of the Establishment Clause to state discrimination between sects and government designation of a particular church as a “state” or “national” one.

Perhaps because I am new to the struggle, I am not ready to abandon all aspects of the Lemon test. I do believe, however, that the standards announced in Lemon should be reexamined and refined in order to make them more useful in achieving the underlying purpose of the First Amendment. Last Term, I proposed a refinement of the Lemon test with this goal in mind. Lynch v. Donnelly, 465 U.S. 668, 687-89 (1984) (concurring opinion).

The Lynch concurrence suggested that the religious liberty protected by the Establishment Clause is infringed when the government makes adherence to religion relevant to a person’s standing in the political community. Direct government action endorsing religion or a particular religious practice is invalid under this approach because it “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Under this view, Lemon’s inquiry as to the purpose and effect of a statute requires courts to examine whether government’s purpose is to endorse religion and whether the statute actually conveys a message of endorsement.

The endorsement test does not preclude government from acknowledging religion or from taking religion into account in making law and policy. It does preclude government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred. Such an endorsement infringes the religious liberty of the nonadherent, for “[w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.” At issue today is whether state moment of silence statutes in general, and Alabama’s moment765 of silence statute in particular, embody an impermissible endorsement of prayer in public schools.

Twenty-five states permit or require public school teachers to have students observe a moment of silence in their classrooms. A few statutes provide that the moment of silence is for the purpose of meditation alone. The typical statute, however, calls for a moment of silence at the beginning of the schoolday during which students may meditate, pray, or reflect on the activities of the day. Federal trial courts have divided on the constitutionality of these moment of silence laws. Relying on this Court’s decisions disapproving vocal prayer and Bible reading in the public schools, the courts that have struck down the moment of silence statutes generally conclude that their purpose and effect are to encourage prayer in public schools.

The Engel and Abington decisions are not dispositive on the constitutionality of moment of silence laws. In those cases, public school teachers and students led their classes in devotional exercises. [In each case], a student who did not share the religious beliefs expressed in the course of the exercise was left with the choice of participating, thereby compromising the nonadherent’s beliefs, or withdrawing, thereby calling attention to his or her nonconformity. The decisions acknowledged the coercion implicit under the statutory schemes, but they expressly turned only on the fact that the government was sponsoring a manifestly religious exercise.

A state-sponsored moment of silence in the public schools is different from state-sponsored vocal prayer or Bible reading. First, a moment of silence is not inherently religious. Silence, unlike prayer or Bible reading, need not be associated with a religious exercise. Second, a pupil who participates in a moment of silence need not compromise his or her beliefs. During a moment of silence, a student who objects to prayer is left to his or her own thoughts, and is not compelled to listen to the prayers or thoughts of others. For these simple reasons, a moment of silence statute does not stand or fall under the Establishment Clause according to how the Court regards vocal prayer or Bible reading.

By mandating a moment of silence, a State does not necessarily endorse any activity that might occur during the period. Even if a statute specifies that a student may choose to pray silently during a quiet moment, the State has not thereby encouraged prayer over other specified alternatives. Nonetheless, it is also possible that a moment of silence statute, either as drafted or as actually implemented, could effectively favor the child who prays over the child who does not. For example, the message of endorsement would seem inescapable if the teacher exhorts children to use the designated time to pray. Similarly, the face of the statute or its legislative history may clearly establish that it seeks to encourage or promote voluntary prayer over other alternatives, rather than merely provide a quiet moment that may be dedicated to prayer by those so inclined. The crucial question is whether the State has conveyed or attempted to convey the message that children should use the moment of silence for prayer. This question cannot be answered in the abstract, but instead requires courts to766 examine the history, language, and administration of a particular statute to determine whether it operates as an endorsement of religion.

Before reviewing Alabama’s moment of silence law to determine whether it endorses prayer, some general observations on the proper scope of the inquiry are in order. First, the inquiry into the purpose of the legislature in enacting a moment of silence law should be deferential and limited. It is particularly troublesome to denigrate an expressed secular purpose due to postenactment testimony by particular legislators or by interested persons who witnessed the drafting of the statute. Even if the text and official history of a statute express no secular purpose, the statute should be held to have an improper purpose only if it is beyond purview that endorsement of religion or a religious belief “was and is the law’s reason for existence.” Since there is arguably a secular pedagogical value to a moment of silence in public schools, courts should find an improper purpose behind such a statute only if the statute on its face, in its official legislative history, or in its interpretation by a responsible administrative agency suggests it has the primary purpose of endorsing prayer.

It is of course possible that a legislature will enunciate a sham secular purpose for a statute. I have little doubt that our courts are capable of distinguishing a sham secular purpose from a sincere one, or that the Lemon inquiry into the effect of an enactment would help decide those close cases where the validity of an expressed secular purpose is in doubt. The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools. A moment of silence law that is clearly drafted and implemented so as to permit prayer, meditation, and reflection within the prescribed period, without endorsing one alternative over the others, should pass this test.

The analysis above suggests that moment of silence laws in many States should pass Establishment Clause scrutiny because they do not favor the child who chooses to pray during a moment of silence over the child who chooses to meditate or reflect. Alabama Code §16-1-20.1 does not stand on the same footing. However deferentially one examines its text and legislative history, however objectively one views the message attempted to be conveyed to the public, the conclusion is unavoidable that the purpose of the statute is to endorse prayer in public schools.

The United States, in an amicus brief, suggests [that] a state-sponsored moment of silence is merely an “accommodation” of the desire of some public school children to practice their religion by praying silently.⁷

767

Even where the Free Exercise Clause does not compel the government to grant an exemption, the Court has suggested that the government in some circumstances may voluntarily choose to exempt religious observers without violating the Establishment Clause. The challenge posed by the United States’ argument is how to define the proper Establishment Clause limits on voluntary government efforts to facilitate the free exercise of religion. On the one hand, a rigid application of the Lemon test would invalidate legislation exempting religious observers from generally applicable government obligations. By definition, such legislation has a religious purpose and effect in promoting the free exercise of religion. On the other hand, judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an “accommodation” of free exercise rights. It is obvious that either of the two Religion Clauses, “if expanded to a logical extreme, would tend to clash with the other.” The Court has long exacerbated the conflict by calling for government “neutrality” toward religion. It is difficult to square any notion of “complete neutrality” with the mandate of the Free Exercise Clause that government must sometimes exempt a religious observer from an otherwise generally applicable obligation. A government that confers a benefit on an explicitly religious basis is not neutral toward religion.

The solution to the conflict between the Religion Clauses lies not in “neutrality,” but rather in identifying workable limits to the government’s license to promote the free exercise of religion. The text of the Free Exercise Clause speaks of laws that prohibit the free exercise of religion. On its face, the Clause is directed at government interference with free exercise. Given that concern, one can plausibly assert that government pursues Free Exercise Clause values when it lifts a government-imposed burden on the free exercise of religion. If a statute falls within this category, then the standard Establishment Clause test should be modified accordingly. It is disingenuous to look for a purely secular purpose when the manifest objective of a statute is to facilitate the free exercise of religion by lifting a government-imposed burden. Instead, the Court should simply acknowledge that the religious purpose of such a statute is legitimated by the Free Exercise Clause. I would also go further. In assessing the effect of such a statute—that is, in determining whether the statute conveys the message of endorsement of religion or a particular religious belief—courts should assume that the “objective observer” is acquainted with the Free Exercise Clause and the values it promotes. Thus individual perceptions, or resentment that a religious observer is exempted from a particular government requirement, would be entitled to little weight if the Free Exercise Clause strongly supported the exemption.

While this “accommodation” analysis would help reconcile our Free Exercise and Establishment Clause standards, it would not save Alabama’s moment of silence law. If we assume that the religious activity that Alabama seeks to protect is silent prayer, then it is difficult to discern any state-imposed burden on that activity that is lifted by Alabama Code §16-1-20.1. No law prevents a student who is so inclined from praying silently in public schools. Moreover, state law already provided a moment of silence to these appellees irrespective of §16-1-20.1. See Ala. Code §16-1-20. I conclude that the Alabama768 statute at issue today lifts no state-imposed burden on the free exercise of religion, and accordingly cannot properly be viewed as an accommodation statute.

Justice White, dissenting.

I dissent from the Court’s judgment invalidating Ala. Code §16-1-20.1. As I read the filed opinions, a majority of the Court would approve statutes that provided for a moment of silence but did not mention prayer. But if a student asked whether he could pray during that moment, it is difficult to believe that the teacher could not answer in the affirmative. If that is the case, I would not invalidate a statute that at the outset provided the legislative answer to the question “May I pray?” This is so even if the Alabama statute is infirm, which I do not believe it is, because of its peculiar legislative history.

NOTES AND QUESTIONS

1. Winning the battle, losing the war. At one level, opponents of school prayer won a victory in Wallace. Yet, considered as a whole, the opinions in Wallace clearly indicate that most moment-of-silence laws should be acceptable—even if they mention “prayer” in the statute. Since Wallace, four circuits have upheld moment-of-silence laws against constitutional challenge: Sherman v. Koch, 623 F.3d 501 (7th Cir. 2010); Croft v. Governor of Texas, 562 F.3d 735 (5th Cir. 2009); Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001); Bown v. Gwinnett Cty. Sch. Dist., 112 F.3d 1464 (11th Cir. 1997). The exception to this trend is May v. Cooperman, 780 F.2d 240 (3d Cir. 1985). Decided only a few months after Wallace, May invalidated a New Jersey moment-of-silence statute on the ground that the secular purposes put forward by the legislature were wholly pretextual. In each of these cases, there was some legislative history suggesting that the moment-of-silence statute was really about returning prayer to the schools, but for the most part the lower courts have read Wallace as saying that only very clear evidence of “no secular purpose” will suffice to strike down a moment-of-silence law.

2. Implementation. Professor Douglas Laycock has argued that, if properly implemented, moment-of-silence laws are “substantively neutral”—that is, they neither encourage nor discourage prayer and thus leave religious choice as free from government influence as possible. Equal Access and Moments of Silence: The Equal Status of Religious Speech by Private Speakers, 81 Nw. U. L. Rev. 1, 3 (1986). Laycock acknowledges, however, that proper implementation is not easy to achieve and that school officials have sometimes improperly signaled that prayer is the preferred use of the moment of silence. Id. at 64-66. This kind of signaling seems clearly unconstitutional under Wallace.

3. Lemon’s purpose prong. As was true in Wallace, moment-of-silence cases have generally turned on Lemon’s purpose prong. Wallace struck down the Alabama statute because it had no secular purpose at all, and the case can be read to suggest that any degree of secular purpose will save a statute from invalidation under the purpose prong. In one of a pair of 2005 cases governing displays of the Ten Commandments on government property, the Supreme Court arguably strengthened the purpose prong by saying courts must look for a secular purpose769 that is “genuine, not a sham, and not merely secondary to a religious objective.” McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 864 (2005). Should this change affect the constitutionality of moment-of-silence laws? See Sherman, 623 F.3d at 520-525 (Williams, J., dissenting); see also Kristi Bowman, Seeing Government Purpose Through the Objective Observer’s Eyes: The Evolution-Intelligent Design Debates, 29 Harv. J.L. & Pub. Pol’y 417, 454-461 (2006) (discussing McCreary County’s effect on the purpose prong).

The Supreme Court has used the purpose prong to invalidate government actions in only a few instances, and the prong’s validity has been debated both within the Court and outside it. For the internal debate on the Court, compare Souter’s majority opinion with Scalia’s opinion in McCreary County. See also Andrew Koppelman, Secular Purpose, 88 Va. L. Rev. 87 (2002). One set of questions about the purpose prong concerns the difficulty of discerning legislative purpose and the proper evidence that can be used in doing so. (On the latter point, consider the different attitudes of Justice Stevens and Justice O’Connor regarding the statements of the bill’s sponsor, Senator Holmes.) Another set of questions asks why legislative purpose should matter at all if the language of the statute and its implementation are facially neutral. Recent personnel changes on the Court make it likely that support for Lemon’s purpose prong (and Lemon generally) have weakened, but it remains part of the law. In addition, the Court continues to rely on the idea of legislative purpose in many other areas of constitutional law. McCreary Cnty., 545 U.S. at 861-862.

4. Which purpose? Why do legislatures enact moment-of-silence statutes? Consider the following (nonexhaustive) possibilities: (a) to create an opportunity for quiet reflection in which students might gather their thoughts for the coming day; (b) to encourage students to pray; (c) to create an opportunity for students to pray if they wish to do so without pressuring other students to join them; (d) to please constituents/voters by working to “return prayer to the schools.”

Which of these purposes are constitutional? Which best explain the existence of moment-of-silence laws? Is option (d) a “legislative purpose” at all, or is it merely a motive for voting for a law? Cf. Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting) (describing the “objective” purpose of a statute as “the public good at which its provisions appear to be directed”). If you were advising a legislator how to frame the purposes of a moment-of-silence law, what would you tell him or her?

5. The endorsement test. Justice O’Connor’s concurrence offers a new Establishment Clause “test” to supplement Lemon. Her “endorsement test” is intended to clarify the application of Lemon’s first two prongs by asking whether an “objective observer” familiar with the “text, legislative history, and implementation” of the statute would perceive a government purpose to endorse religion or an actual message of endorsement. The normative ideal behind the test is that the government should not act in ways that divide citizens into insiders and outsiders on the basis of their religious affiliations. Both the Supreme Court and lower courts have used Justice O’Connor’s test to supplement Lemon, and it has often been the real workhorse in cases involving government religious speech and symbolism. (As with Lemon, the continued force of770 the endorsement test is in some doubt in light of personnel changes on the Court.) Commentary on the endorsement test is vast. See, e.g. Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 Mich. L. Rev. 266 (1987); William P. Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495 (1986).

6. Accommodation. It might be argued that moment-of-silence statutes are never really about providing opportunities for meditation, reflection, or focusing. Instead, the most charitable, yet realistic, reading is that the statutes are meant to provide a silent prayer opportunity for students who wish to pray, but are not meant to influence student choices about whether to pray. Is this a permissible, secular purpose? Can moment-of-silence statutes be seen as accommodations of religion if understood in this way?

The Supreme Court’s case law on the limits of permissible accommodation (i.e., how far the government can advance free exercise values without crossing into forbidden establishment) has not been entirely clear, though the present Court seems favorably disposed toward discretionary accommodations of religion. For a helpful overview, see Carl H. Esbeck, When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis, 110 W. Va. L. Rev. 359 (2007). The Court’s most recent statement suggests that an accommodation is permissible at least when it “alleviates exceptional government-created burdens on private religious exercise,” “take[s] adequate account of the burdens a requested accommodation may impose on nonbeneficiaries [i.e., people who don’t benefit from the accommodation—Ed.],” and is “administered neutrally among different faiths.” Cutter v. Wilkinson, 544 U.S. 709, 720-724 (2005). How would moment-of-silence statutes fare under this test? Does it matter that silent prayer fits better with some religious traditions than others?

7. Justice Rehnquist and nonpreferentialism. In a dissent from Wallace not reprinted here, Justice Rehnquist uses historical evidence to argue for nonpreferentialism, the view that (as a matter of original intent) the Establishment Clause allows the government to promote religion over nonreligion but forbids preferences among religions. According to Justice Rehnquist, evidence surrounding the deliberations of the First Congress suggests that “[t]he evil to be aimed at, so far as those who spoke were concerned, appears to have been the establishment of a national church, and perhaps the preference of one religious sect over another; but it was definitely not concerned about whether the Government might aid all religions evenhandedly.” Wallace, 472 U.S. at 99 (Rehnquist, J., dissenting). How often can the government promote “religion in general” without favoring one religion over others? Could a vocal prayer accomplish this? A moment of silence?

In support of his views, Justice Rehnquist quotes Joseph Story, a Justice on the Supreme Court from 1811 to 1845 and the author of his era’s most comprehensive constitutional treatise:

Probably at the time of the adoption of the Constitution, and of the amendment to it, now under consideration [First Amendment], the general if not the universal sentiment in771 America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

The real object of the [First][A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.

2 Joseph Story, Commentaries on the Constitution of the United States 630-632 (5th ed. 1891). Suppose Justice Story was correct about the original intent of the Establishment Clause. What follows?

Nonpreferentialism has never commanded a majority of the Court, and Justice Rehnquist’s arguments have been disputed both within the Court, Lee v. Weisman, 505 U.S. 577 (1992) (Souter, J. concurring), and outside it, Douglas Laycock, “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875 (1986).

4. School-Sponsored Prayer Outside the Classroom

While the basic prohibition against daily, school-sponsored classroom prayer remained firm (in law if not always in ground-level practice), by the early 1990s increasing dissatisfaction with Lemon and the Court’s approval of legislative prayer in Marsh v. Chambers created the sense that change might be imminent. The Sixth Circuit had already taken Marsh to imply that nonsectarian, nonproselytizing prayers at public school graduation ceremonies could be constitutional. Stein v. Plainwell Cmty. Schs., 822 F.2d 1406, 1409-1410 (6th Cir. 1987). When the Court granted certiorari in the next case, the first Bush administration filed an amicus brief urging the Court to rule that there could be no Establishment Clause violation without government coercion and that a student’s decision to attend graduation ceremonies was wholly voluntary and hence uncoerced.

Lee v. Weisman

505 U.S. 577 (1992)

Justice Kennedy delivered the opinion of the Court.

School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment.

772

Deborah Weisman graduated from Nathan Bishop Middle School in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah’s father, Daniel Weisman, objected to any prayers at Deborah’s middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah’s class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with “inclusiveness and sensitivity,” though they acknowledge that “[p]rayer of any kind may be inappropriate on some civic occasions.” The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. Rabbi Gutterman’s prayers were as follows:

“Invocation

“God of the Free, Hope of the Brave:

“For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it.

“For the liberty of America, we thank You. May these new graduates grow up to guard it.

“For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust.

“For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it.

“May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled.

AMEN.”

“Benediction

“O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement.

“Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them.

“The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly.

“We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.

AMEN.”

773 The school board (and the United States, which supports it as amicus curiae) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of our people ought to be expressed at an event as important in life as a graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman’s case.

[Both the federal district court and the First Circuit had ruled that the graduation prayer violated the Establishment Clause.]

These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. [T]he controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us.

The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so.” The State’s involvement in the school prayers challenged today violates these central principles.

That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent.

Divisiveness, of course, can attend any state decision respecting religions, and neither its existence nor its potential necessarily invalidates the State’s attempts to accommodate religion in all cases. The potential for divisiveness is of particular relevance here though, because it centers around an overt religious exercise in a secondary school environment where, as we discuss below, subtle774 coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation.

The State’s role did not end with the decision to include a prayer and with the choice of a clergyman. Principal Lee provided Rabbi Gutterman with a copy of the “Guidelines for Civic Occasions,” and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State’s displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government,” and that is what the school officials attempted to do.

We are asked to recognize the existence of a practice of nonsectarian prayer, prayer within the embrace of what is known as the Judeo-Christian tradition, prayer which is more acceptable than one which, for example, makes explicit references to the God of Israel, or to Jesus Christ, or to a patron saint. If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself.

The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference. James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: “[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.” Memorial and Remonstrance Against Religious Assessments (1785), in 8 Papers of James Madison 301 (W. Rachal, R. Rutland, B. Ripel, & F. Teute eds. 1973).

The degree of school involvement here made it clear that the graduation prayers bore the imprint of the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and those who did not.

To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance presupposes some mutuality of obligation. It is argued that our constitutional775 vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve, and that prayer at a high school graduation does nothing more than offer a choice. By the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief, formal prayer ceremony that the school offers in return. This argument cannot prevail, however. It overlooks a fundamental dynamic of the Constitution.

The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.

As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi’s prayer. That was the very point of the religious776 exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it.

Finding no violation under these circumstances would place objectors in the dilemma of participating, with all that implies, or protesting. We do not address whether that choice is acceptable if the affected citizens are mature adults, but we think the State may not, consistent with the Establishment Clause, place primary and secondary school children in this position. Research in psychology supports the common assumption that adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention. Brittain, Adolescent Choices and Parent-Peer Cross-Pressures, 28 Am. Sociological Rev. 385 (June 1963); Clasen & Brown, The Multidimensionality of Peer Pressure in Adolescence, 14 J. of Youth and Adolescence 451 (Dec.1985); Brown, Clasen, & Eicher, Perceptions of Peer Pressure, Peer Conformity Dispositions, and Self-Reported Behavior Among Adolescents, 22 Developmental Psychology 521 (July 1986). To recognize that the choice imposed by the State constitutes an unacceptable constraint only acknowledges that the government may no more use social pressure to enforce orthodoxy than it may use more direct means.

There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Petitioners and the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “voluntary,” for absence would require forfeiture of those intangible benefits which have motivated the student through youth and all her high school years.

The importance of the event is the point the school district and the United States rely upon to argue that a formal prayer ought to be permitted, but it becomes one of the principal reasons why their argument must fail. Their contention, one of considerable force were it not for the constitutional constraints applied to state action, is that the prayers are an essential part of these ceremonies because for many persons an occasion of this significance lacks meaning if there is no recognition, however brief, that human achievements cannot be understood apart from their spiritual essence. We think the Government’s position that this interest suffices to force students to choose between compliance or forfeiture demonstrates fundamental inconsistency in its argumentation. It fails to acknowledge that what for many of Deborah’s classmates and their parents was a spiritual imperative was for Daniel and Deborah Weisman religious conformance compelled by the State. While in some societies the wishes of the majority might prevail, the Establishment Clause of the First Amendment is addressed to this contingency and rejects the balance urged777 upon us. The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation. This is the calculus the Constitution commands.

Justice Blackmun, with whom Justice Stevens and Justice O’Connor join, concurring.

The Court holds that the graduation prayer is unconstitutional because the State “in effect required participation in a religious exercise.” Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing or promoting religion.

[I]t is not enough that the government restrain from compelling religious practices: It must not engage in them either. The Court repeatedly has recognized that a violation of the Establishment Clause is not predicated on coercion.

Justice Scalia, with whom The Chief Justice, Justice White, and Justice Thomas join, dissenting.

[In the omitted section I of his dissent, Justice Scalia recounted the history of public prayer generally and at high school graduation ceremonies in particular. He then attacked Justice Kennedy’s claim that dissenting students are coerced to participate in graduation prayers.]

The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman’s invocation? The government can, of course, no more coerce political orthodoxy than religious orthodoxy. West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943). Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase “under God,” recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court’s view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In Barnette we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence—indeed, even to stand in respectful silence—when those who wished to recite it did so.

III

The deeper flaw in the Court’s opinion does not lie in its wrong answer to the question whether there was state-induced “peer-pressure” coercion; it lies,778 rather, in the Court’s making violation of the Establishment Clause hinge on such a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. Thus, for example, in the Colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches.

The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington down to the present day, has, with a few aberrations, see Church of Holy Trinity v. United States, 143 U.S. 457 (1892), ruled out of order government-sponsored endorsement of religion—even when no legal coercion is present, and indeed even when no ersatz, “peer-pressure” psycho-coercion is present—where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ). But there is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman—with no one legally coerced to recite them—violated the Constitution of the United States. To the contrary, they are so characteristically American they could have come from the pen of George Washington or Abraham Lincoln himself.

NOTES AND QUESTIONS

1. Does Lee v. Weisman seem a closer case than Engel v. Vitale? If so, what are the features that make it closer?

2. The “coercion” test. At the very least, Weisman means that the government may not coerce participation in religious exercises. In the wake of Weisman, lower courts and commentators have spoken of a “coercion test” for Establishment Clause violations that supplements the Lemon test and the endorsement test. After Weisman, is government coercion a necessary or a sufficient condition for violations of the Establishment Clause?

Confronted with three different Establishment Clause tests, lower courts have struggled to determine which one(s) to apply. Often, they apply all three tests. See, e.g., ACLU of N.J. v. Black Horse Pike Reg. Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) (en banc) (invalidating graduation prayer by addressing coercion, Lemon, and endorsement). Things could be worse for the lower courts. Professor Steven Gey has argued that various Justices have suggested ten different779 constitutional standards for enforcing the Establishment Clause. Life After the Establishment Clause, 110 W. Va. L. Rev. 1, 35-40 (2007).

3. State-sponsored prayer. For a graduation prayer to violate the Establishment Clause, the prayer must be attributable to the state. What features of Rabbi Gutterman’s prayer made it attributable to the state?

4. Structural limitation, coercion, exclusion. What is wrong with a graduation prayer? Does it violate a structural principle that the government and religion should stay separate for the good of each? Cf. Engel, 370 U.S. at 435 (“[E]ach separate government in this country should stay out of the business or writing or sanctioning official prayers and leave that purely religious function to the people themselves.…”); Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 Iowa L. Rev. 1 (1998). Does it coerce students to either participate or protest? Does it send a message that some students are religious insiders and others religious outsiders?

5. Coercion and its attribution to the state. What level of pressure on religious exercise should count as coercion? Do you think Justice Kennedy is correct that there is significant peer pressure to participate in school religious exercises? What makes this coercion by peers, who are not state actors, attributable to the state? The fact that the state has required students to be in the environment where the prayer takes place? The fact that the government knows the peer pressure will be present when it sponsors a prayer? Compare Weisman with Pierce v. Sullivan W. Cent. Sch. Dist., 379 F.3d 56, 60 (2d Cir. 2004) (rejecting argument that pressure and hurtful remarks from other students to nonparticipants made a school release time program unconstitutional: “it was the students, not the School District, who said and did hurtful things”).

6. Justice Scalia’s approach: permitting “nonsectarian” prayers. Justice Scalia argues that, as a matter of history, nonsectarian prayers (i.e., prayers that do not “specify[] details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the World are known to differ”) at graduation should be constitutional. Why are “nonsectarian” prayers permissible while sectarian prayers are not? Should the composition of the community matter in determining what counts as nonsectarian? What if only a few people object? Cf. McCreary Cnty., Ky. v. ACLU, 545 U.S. 844, 894 (2005) (Scalia, J., dissenting) (arguing that the government may endorse monotheism by displaying the Ten Commandments and noting that almost 98 percent of religious believers are either Christians, Jews, or Muslims). Justice Scalia suggests that nonsectarian public prayer is a valuable way of fostering mutual toleration and protection among people of different faiths. Can public prayer still serve to unite all Americans? Compare Frederick Gedicks & Roger Hendrix, Uncivil Religion: Judeo-Christianity and the Ten Commandments, 110 W. Va. L. Rev. 275 (2007), with Steven D. Smith, “Sectarianizing” Civil Religion? A Comment on Gedicks and Hendrix, 110 W. Va. L. Rev. 307 (2007).

If Justice Scalia’s approach were adopted, courts would have to decide whether prayers are sufficiently nondenominational to pass constitutional muster. Some lower courts have conducted this type of inquiry in reviewing the sorts of legislative prayers approved in Marsh v. Chambers. See, e.g., Joyner v. Forsyth Cnty., 653 F.3d 341 (4th Cir. 2011) (ruling that under Marsh legislative prayers must be “nonsectarian” and must “seek to unite rather than divide”).780 Are courts well equipped to undertake such a task? Is doing so consistent with the Establishment Clause? See generally Christopher Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, 94 Minn. L. Rev. 1387 (2010).

The Supreme Court recently revisited the question of legislative prayer in Town of Greece v. Galloway, 134 S. Ct. 1811 (2014). In Galloway, plaintiffs challenged a practice of inviting local clergy to deliver invocations before town board meetings. Nearly all the clergy who gave invocations were Christians, and the content of most of the invocations was also distinctively Christian. The plaintiffs argued that Marsh permitted only more ecumenical invocations, but the Court (in a 5-4 decision written by Justice Kennedy) disagreed: “To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact.” Id. at 1822. The Court also rejected arguments that citizens attending board meetings were coerced to participate in the prayers. Id. at 1827 (distinguishing Weisman). While Galloway signals broad acceptance of legislative prayer, the Court insisted that some limits remain: “If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case.” For an insightful discussion of Galloway, see Paul Horwitz, The Religious Geography of Town of Greece v. Galloway, 2014 Sup. Ct. Rev. 243 (2014).

7. University graduations and school board meetings. Marsh/Galloway and Weisman together suggest that public prayers are usually permissible in legislative settings, but not in primary and secondary schools. Since this result makes little sense if we think of the Establishment Clause as a structural restraint on government speech or as protection against feelings of religious alienation, the natural tendency is to look to coercion as the basis for distinguishing Marsh (and now Galloway) from Weisman. Reasoning along these lines, courts have tended to see public prayer involving adults as governed by Marsh. Consequently, prayers in university settings have generally been upheld. See Tanford v. Brand, 104 F.3d 982 (7th Cir. 1997) (upholding nondenominational prayer at a university graduation against challenge by professor and students); Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997) (rejecting similar challenge by professor). But cf. Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003) (ruling that supper prayer at Virginia Military Institute violated the Establishment Clause and noting the coercive atmosphere created by the adversative method of education).

What about prayers before school board meetings, which are “legislative” in character but are also regularly attended by students? A number of circuit court decisions have ruled this practice unconstitutional, sometimes by reasoning that school board meetings are governed by Weisman rather than Marsh, Doe v. Indian River Sch. Dist., 653 F.3d 256 (3d Cir. 2011); Coles v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir. 1999), and sometimes by781 reasoning that although Marsh governs, the prayers in question were overly sectarian, Doe v. Tangipahoa Parish Sch. Bd., 473 F.3d 188 (5th Cir. 2006). The Tangipahoa Parish decision is likely undermined by Galloway. Does Galloway also undermine Indian River and Coles?

5. Government Prayer vs. Private Prayer

Only state action can violate the Establishment Clause. While state-sponsored religious expression (usually) violates the Establishment Clause, private religious expression is constitutionally protected. Capitol Sq. Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 765 (1995) (plurality opinion). This makes the distinction between public and private prayer all-important, and Weisman shows that this line cannot be drawn simply by asking whether the speaker is a state official. After Weisman, perhaps the most frequent strategy of school prayer advocates has been to characterize public school prayers as protected private speech. This strategy takes its inspiration in part from a line of cases involving speech rights within public fora. These cases are examined below in Section F. For now, the basic idea (crudely put) is that the government might choose to open up a speaking opportunity and create a “free speech zone” (subject, perhaps, to certain restrictions based on the identity of the speakers and the subject matter) where private speech can occur. To the extent a public school creates such a public forum, religious speech (including prayer) that takes place within it will be considered private and thus should not violate the Establishment Clause. The idea is not terribly difficult to state, but in practice drawing the line between public and private religious speech in the public school context has proven difficult.

The Supreme Court addressed this issue in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). There, the court considered a Texas school district’s policy providing for student-delivered invocations at football games:

“STUDENT ACTIVITIES:

“PRE-GAME CEREMONIES AT FOOTBALL GAMES

“The board has chosen to permit students to deliver a brief invocation and/or message to be delivered during the pre-game ceremonies of home varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.

“Upon advice and direction of the high school principal, each spring, the high school student council shall conduct an election, by the high school student body, by secret ballot, to determine whether such a statement or invocation will be a part of the pre-game ceremonies and if so, shall elect a student, from a list of student volunteers, to deliver the statement or invocation. The student volunteer who is selected by his or her classmates may decide what message and/or invocation to deliver, consistent with the goals and purposes of this policy.

The school district argued that the student invocations were private speech, but the Court was not persuaded:

The District has attempted to disentangle itself from the religious messages by developing the two-step student election process. The text of the October policy, however,782 exposes the extent of the school’s entanglement. The elections take place at all only because the school “board has chosen to permit students to deliver a brief invocation and/or message.” The elections thus “shall” be conducted “by the high school student council” and “[u]pon advice and direction of the high school principal.” The decision whether to deliver a message is first made by majority vote of the entire student body, followed by a choice of the speaker in a separate, similar majority election. Even though the particular words used by the speaker are not determined by those votes, the policy mandates that the “statement or invocation” be “consistent with the goals and purposes of this policy,” which are “to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.”

In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the purpose of the message is “to solemnize the event.” A religious message is the most obvious method of solemnizing an event. Moreover, the requirements that the message “promote good sportsmanship” and “establish the appropriate environment for competition” further narrow the types of message deemed appropriate, suggesting that a solemn, yet nonreligious, message, such as commentary on United States foreign policy, would be prohibited. Indeed, the only type of message that is expressly endorsed in the text is an “invocation” a term that primarily describes an appeal for divine assistance. In fact, as used in the past at Santa Fe High School, an “invocation” has always entailed a focused religious message. Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections described in the parties’ stipulation make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony.…The delivery of such a message—over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer—is not properly characterized as “private” speech.

NOTES AND QUESTIONS

1. In the wake of Weisman, a number of school districts revamped graduation prayer policies by having elected students rather than local clergy give invocations and benedictions. See, e.g., ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471 (3d Cir. 1996) (en banc) (describing adoption of student elections policy as an effort to continue graduation prayers without running afoul of Weisman). These cases were litigated with mixed results. Compare Black Horse (striking policy where students elected classmate to give graduation prayers) with Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992) (upholding very similar policy). Santa Fe signaled (by a 6-3 vote) that making prayer “private” at school functions would be harder than some courts had thought, but it did not end litigation on this question because the Court stopped short of saying that public school graduations could never contain any religious expression as part of the ceremony.

2. Consider the following policy: (1) The senior class votes on whether the graduation exercises will include a “brief opening and/or closing message, not to exceed two minutes.” (2) If the class votes to have a message, they elect the student who will give the message. (3) The elected student volunteer prepares the content of the message without any review by school officials. Is this policy constitutional after Santa Fe? A divided Eleventh Circuit said “yes” in Adler v. Duval County School Board, 250 F.3d 1330 (11th Cir. 2001) (en banc). Do you783 agree? If the policy has been implemented, does it make any difference how often students actually choose to deliver a prayer as the “brief opening and/or closing message”? In a decision later vacated as moot, a Ninth Circuit panel upheld against a facial challenge a school policy that allowed four students selected on the basis of class rank to deliver “an address, poem, reading, song, musical presentation, prayer, or any other pronouncement” without school officials having the authority to “censor any presentation or require any content.” Doe v. Madison Sch. Dist. No. 321, 147 F.3d 832 (9th Cir. 1998), vacated on standing and mootness grounds, 177 F.3d 789 (9th Cir. 1999) (en banc). The court distinguished Weisman by noting the absence of government control over the speech. Would this reasoning survive Santa Fe?

The reasoning of Madison School District would suggest that the most certain path to constitutionally permissible graduation prayer would be to select students by some facially neutral criterion and give them free reign to say whatever they would like. If you were a school official, would you adopt such a policy?

Texas took a step in this direction in 2007 by adopting the Religious Viewpoints Antidiscrimination Act (RVAA). (Three other states—Tennessee, Mississippi, and South Carolina—have since adopted similar laws.) Responding in part to the Supreme Court’s decision in Santa Fe, the RVAA requires school districts to adopt policies creating a “limited public forum for student speakers at all school events at which a student is to publicly speak,” Tex. Educ. Code. §25.152(a), “in a manner that does not discriminate against a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject,” id. §25.152(a)(1). The school district policy must provide a method based on “neutral criteria” for selecting speakers at graduation ceremonies and other school events, id. §25.152(a)(2), and schools must issue disclaimers making clear that student expression within the limited public forum does not reflect the views of the school district, id. §25.152(a)(4). The point of the RVAA is to make it possible for school events in Texas to include prayers and other religious expression in a manner that will be “private” and hence not vulnerable to Establishment Clause challenge. For a detailed analysis of the constitutional issues, see Melissa Rogers, The Texas Religious Viewpoints Antidiscrimination Act and the Establishment Clause, 42 U.C. Davis L. Rev. 939 (2009). Thus far, there are no reported cases interpreting these new statutes.

3. Public vs. private. Santa Fe appears to allow for the possibility that some religious speech within the context of a public school graduation could be private and hence would not implicate the Establishment Clause. Does it make sense for the constitutionality of graduation prayers to turn on highly fact-specific inquiries about whether speech within the content of a graduation ceremony is private or state sponsored? Can speech delivered as part of an official school ceremony ever qualify as entirely private? For contrasting approaches, see Kathleen Brady, The Push to Private Religious Expression: Are We Missing Something?, 70 Fordham L. Rev. 1147 (2002); Steven Gey, The No Religion Zone: Constitutional Limitations on Religious Association in the Public Sphere, 85 Minn. L. Rev. 1885 (2001).

4. Free speech rights of graduation speakers. The case law on student prayer usually pits a school district supportive of prayer against plaintiffs who argue that784 allowing prayer violates the Establishment Clause. The idea that some graduation prayers might be private speech suggests a different scenario: suppose a student graduation speaker wishes to lead a prayer and/or give a proselytizing address, but the school district reviews the content of proposed speeches in advance and seeks to prevent the student from doing so. Do the school district’s actions violate the speaker’s speech rights? Two Ninth Circuit cases suggest that the answer is “no.” Lassonde v. Pleasanton U.S.D., 320 F.3d 979 (9th Cir. 2003) (preventing student from giving a proselytizing address was necessary to avoid Establishment Clause violation and hence did not violate student’s speech rights); Cole v. Oroville UHSD, 228 F.3d 1092 (9th Cir. 2000) (same); see also Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219 (10th Cir. 2009) (requiring student to apologize for unauthorized religious reference in graduation speech did not violate First Amendment); but cf. Nurre v. Whitehead, 130 S. Ct. 1937 (2010) (Alito, J., dissenting from the denial of certiorari) (suggesting that school’s refusal to allow wind ensemble to perform religious instrumental music at graduation ceremony was unconstitutional viewpoint discrimination). It would appear that the Texas RVAA and similar laws are intended to change the result in cases like Cole and Corder as well as in cases where the school district supports the student religious expression.

5. Government prayer, government coercion. Suppose a school district so distances itself from a student speaker’s graduation prayer that the prayer truly becomes “private speech.” Do students who object to the graduating prayer experience coercion any differently or to any lesser degree than the objecting students in Lee v. Weisman? Would the coercion be any less attributable to the state than in Weisman? If you answered “no” to these questions, does this mean that under Weisman “private prayers” at public high school graduations ought to be just as unconstitutional as state-sponsored prayers? Cf. Madison Sch. Dist., 147 F.3d at 835 (upholding student graduation prayer and distinguishing Weisman by noting lack of government control over the speech, even though “the pressures on a student to attend graduation and to conform with her peers[] may well be present here”). Does Weisman really stand for the proposition that there must be both state-sponsored (as opposed to private) prayer and state-sponsored coercion? Wouldn’t government coercion to participate in (or just listen to) private religious speech violate the Establishment Clause? (Requiring citizens to attend church (where they would—among other things—hear private religious speech) is presumably a paradigm Establishment Clause violation.) If the coercion experienced at graduation prayers is not attributable to the state (in this hypothetical or in Weisman) and state-sponsored prayer is enough, does the coercion analysis do any work in Weisman at all?

6. The endorsement test: making a fetish out of state action? Viewed through the lens of the endorsement test, the major problem with school prayers is that they send messages of exclusion to nonparticipants, thus dividing the citizenry into religious insiders and outsiders. Professor Feldman has argued that the driving force behind the endorsement test is an ideal of political equality. Noah Feldman, From Liberty to Equality: The Transformation of the Establishment Clause, 90 Cal. L. Rev. 673 (2002). Feldman notes, however, that the case law’s focus on785 state action sits uneasily with the goal of protecting religious minorities from political exclusion:

Because the citizens themselves actually make up democratic government, it seems odd to argue that communication transmitted via government creates political inequality, while identical communication transmitted directly does not. This is especially true where the political entity in question is small and its connection to the citizens close.…In the aftermath of [Santa Fe], a new practice is apparently emerging at Texas high school football games: before play, students rise in their seats and in unison, begin to recite the Lord’s Prayer. It is difficult to imagine that a quasi-spontaneous group prayer, effectuated without the involvement of the school, could be said to violate the Establishment Clause.…Yet surely whatever message the formally sponsored prayer sent to religious minorities is sent with as much force or more by the informal one…Before the [Santa Fe] decision, the prayer may have meant, “We are a Christian town and we pray before football games.” After the Court’s decision, the prayer probably means, “We are a Christian town, and we will pray before football games no matter who the Supreme Court says is excluded by it.” The post-Santa Fe prayer arguably has the effect of communicating intentionally, rather than just incidentally, the message that those who pray are insiders in this particular polity.

Id. at 721-722. Feldman sums up his point by suggesting that the endorsement test “makes a fetish of state action,” whereas in fact “the notion of ‘state action’ starts to look implausible where our central concern is communicative effect.” But see Douglas Laycock, Substantive Neutrality Revisited, 110 W. Va. L. Rev. 51, 79 (2007) (rejecting Feldman’s argument). What do you think? From the standpoint of religious minorities, how much does government endorsement of majority religion add to the fact of minority status?

PROBLEM

You represent the West Branson School District in the State of Disrepair. West Branson is a small rural community, but its population has grown markedly in recent years after a major computer company decided to establish its international customer service center in the town. Marcus Gordon has been the head varsity football coach at West Branson High School for 23 years. During those 23 years, the football team has always prayed before every game. Indeed, the tradition of team prayer before football games extends as far back as anyone can remember—it started well before Gordon’s tenure. During the first two years of Gordon’s coaching career, he led the team prayers himself. But the school board’s lawyer at that time got wind of this practice, and ultimately school authorities persuaded Gordon that he should not lead the prayers. Since that time, a tradition of “player-initiated prayer” has developed. It is not entirely clear how this tradition developed or whether Gordon played an active role in its development, but the basic practice is as follows:

Before every game, players gather in the locker room for Coach Gordon’s pre-game speech just before they take the field. At the end of the speech, Coach Gordon says something like “Team on 3…1, 2, 3,” and all the players shout “Team.” Immediately after that, the players gather in a circle, kneel on one knee on the floor, and bow their heads. Gordon also kneels and bows his head. One of786 the team captains, always a senior, offers a prayer of his choosing. Neither Gordon nor any other school official screens the content of the prayers beforehand or comments on that content in any way. As far as anyone can tell, the prayers have always been in the “Judeo-Christian tradition,” invoking the God worshiped in those traditions. Some prayers have made reference simply to “God,” “Father,” etc.; others have been offered specifically in the name of Jesus or in the name of “the Father, the Son, and the Holy Ghost.” Only one team captain speaks during the prayer, though at the end of the prayer many (and perhaps all) team members say “Amen.” Gordon says that he is not sure whether he always joins in the “Amen,” but says that he probably does so on at least some occasions. Apparently the team captains decide among themselves who will offer the prayer—typically there is a rotation from game to game among the various captains. At the end of the season, Coach Gordon selects captains for the following year. Without Coach Gordon’s involvement, graduating captains meet with the newly selected captains about the responsibilities of the role and explain, among other things, the importance of leading the team in prayer before each game.

Until very recently, no one on the team or in the community had ever complained about the practice just described. It is unclear how many people in the community knew about the practice at all, and certainly no one on the team complained. You weren’t aware of all this yourself until a phone call you received two days ago. That call was from the principal of West Branson High, who explained that there was “some controversy” about pre-football game prayers. The principal explained that for the first time, two players on the football team and their families have complained about the prayers. These two players, Michael Stein (a Jew) and Thich Nhat Hanh (a Buddhist), are the only non-Christians on the team. (Well, at least the only ones who are “out.”) Both are newcomers to the area, as their families work in upper-level management at the new computer facility. This was their first year on the team, and for the first few games of the season they knelt silently with the rest of the team and bowed their heads during the prayer, but refrained from saying “Amen” at the end. Before the fourth game, the team captain offered a prayer with repeated references to the “saving blood of Jesus Christ, who died for our sins” and an acknowledgment of Jesus’ lordship over the world as “our one and only true Deliverer.” This made Stein and Hanh uncomfortable. After conferring together, they decided that in future games they would stand silently on the other side of the room during team prayer. As might be expected, this did not go unnoticed, and they received a few questions about why they didn’t pray with the rest of the team. Most players accepted their explanations without further comment; one player remarked that a team “can’t play together if it doesn’t pray together.” The nonpraying students eventually described the situation to their parents, and both families were angry. They called the principal complaining that the prayers “violate the separation of church and state” and make their kids “feel like outsiders on their own team.” They demanded that the prayers be stopped and that Coach Gordon be officially reprimanded for his role in the prayers. The principal protested that Coach Gordon “has nothing to do with the prayers,” but the parents (and their kids) insist that the prayers are “expected” and the coach sets the expectations for the team.

787

The principal, of course, wants your advice about what to do. Specifically, he wants to know

whether you think the parents are really correct that the pre-football game prayers violate “the separation of church and state” and whether continuing the prayers will mean that “ultimately we’ll get sued by the ACLU.”
whether there might be a lawsuit filed by Coach Gordon and/or his players if the school orders that the prayers be stopped.
your opinion about what, if anything, the school should do.

Explain what you will tell the principal in response to these three questions.

B. PATRIOTIC RITUALS AND CIVIL RELIGION

1. Limits on Political Socialization

The Establishment Clause limits government’s power to use the public schools as an instrument of religious socialization. Whatever interests the state might have in religious socialization, these are subordinate to its interests in political socialization. The public schools seek to train the next generation of citizens, and such training will include an effort to foster some degree of commitment to common social values and some degree of loyalty to the state. Some of this socialization can be accomplished through ordinary instruction (civics classes and the like), but symbolism and ritual play an important part. The central patriotic ritual of the public school is the Pledge of Allegiance to the American flag. Justice Frankfurter described its importance as follows:

The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization. “We live by symbols.” The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution. This Court has had occasion to say that “…the flag is the symbol of the nation’s power, the emblem of freedom in its truest, best sense.…[I]t signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.”

Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 596 (1940). In Gobitis, the Court considered whether the state’s interest in patriotic ritual could be limited by the free exercise rights of Jehovah’s Witnesses. A Pennsylvania school board required participation in the flag salute on pain of expulsion; the plaintiffs sought an exemption on the ground that saluting the flag amounted to idol788 worship and violated their deepest religious convictions. The Court rejected their claim, citing the state’s tremendous interest in fostering national unity and stating that “[c]onscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.” Id. at 594. Only three years later, the Court revisited the issues raised in Gobitis in the next case. This time, the Court articulated limits on the state’s powers of political socialization.

West Virginia State Board of Education v. Barnette

319 U.S. 624 (1943)

Mr. Justice Jackson delivered the opinion of the Court.

[Following Minersville School District v. Gobitis, 310 U.S. 586 (1940), the West Virginia Board of Education passed the following resolution:

Therefore, be it Resolved, That the West Virginia Board of Education does hereby recognize and order that the commonly accepted salute to the Flag of the United States—the right hand is placed upon the breast and the following pledge repeated in unison: “I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all”—now becomes a regular part of the program of activities in the public schools, supported in whole or in part by public funds, and that all teachers as defined by law in West Virginia and pupils in such schools shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.]

Failure to conform is “insubordination” dealt with by expulsion. Readmission is denied by statute until compliance.

Appellees, citizens of the United States and of West Virginia, brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah’s Witnesses. The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus 20:4-5, which says: “Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.” They consider that the flag is an “image” within this command. For this reason they refuse to salute it.

This case calls upon us to reconsider a precedent decision, as the Court throughout its history often has been required to do. Before turning to the Gobitis case, however, it is desirable to notice certain characteristics by which this controversy is distinguished.

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between789 authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.

As the present Chief Justice said in dissent in the Gobitis case, the State may “require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty which tend to inspire patriotism and love of country.” Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally may be short-cut by substituting a compulsory salute and slogan.

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee.

It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.

Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be790 largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence validity of the asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question.

Nor does the issue as we see it turn on one’s possession of particular religious views or the sincerity with which they are held. While religion supplies appellees’ motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. It is not necessary to inquire whether non-conformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.

The Gobitis decision, however, assumed, as did the argument in that case and in this, that power exists in the State to impose the flag salute discipline upon school children in general. The Court only examined and rejected a claim based on religious beliefs of immunity from an unquestioned general rule. The question which underlies the flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution. We examine rather than assume existence of this power and, against this broader definition of issues in this case, re-examine specific grounds assigned for the Gobitis decision.

The Gobitis opinion reasoned that this is a field “where courts possess no marked and certainly no controlling competence,” that it is committed to the legislatures as well as the courts to guard cherished liberties and that it is constitutionally appropriate to “fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena,” since all the “effective means of inducing political changes are left free.” Id. at 597, 598, 600.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Lastly, and this is the very heart of the Gobitis opinion, it reasons that “National unity is the basis of national security,” that the authorities have “the right to select appropriate means for its attainment,” and hence reaches the conclusion that such compulsory measures toward “national unity” are constitutional. Id. at 595. Upon the verity of this assumption depends our answer in this case.

National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and791 places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

The decision of this Court in Minersville School District v. Gobitis and the holdings of those few per curiam decisions which preceded and foreshadowed it are overruled, and the judgment enjoining enforcement of the West Virginia Regulation is affirmed.

792

NOTES AND QUESTIONS

1. The Pledge of Allegiance and the flag salute. The historical background and jurisprudential implications of Barnette are engagingly explored in Vincent Blasi & Seana V. Shiffrin, The Story of West Virginia State Board of Education v. Barnette: The Pledge of Allegiance and Freedom of Thought, in Constitutional Law Stories (Michael Dorf ed., 2d ed. 2009). The original Pledge of Allegiance was composed in 1892 by Edward Bellamy, but its prominent place in American schooling owes much to the post–World War I flag promotion efforts of veterans’ groups like the American Legion. Today’s readers may be puzzled by the notion of a “flag salute.” In the Pledge’s original form (maintained through Gobitis and the beginning of the Barnette litigation), students (and others) pledged allegiance to “my flag” rather than “the flag of the United States of America.” They began recitation of the pledge with the right hand over the heart, but extended the right arm (palm turned up) toward the flag at the words “my flag.” In December 1942, Congress changed the wording regarding the flag and abandoned the flag salute as too similar to the Nazi salute.

2. What changed in three years? Though Justice Jackson’s opinion emphasizes its focus on a question not explicitly addressed in Gobitis (i.e., the state’s authority to compel participation in the flag ceremony generally) as though it meant to distinguish the earlier case, Barnette explicitly overruled Gobitis. What explains the rapid turnaround? Part of the answer is changed personnel. There were two new Roosevelt appointees on the Court (Justices Jackson and Rutledge) replacing Justices who had voted with the majority in Gobitis. In addition, a biography of Justice Black suggests that Justices Black, Douglas, and Murphy repented of their Gobitis votes almost immediately and looked for an opportunity to revisit Gobitis. Roger K. Newman, Hugo Black: A Biography 284-285 (1994) (quoted in Blasi and Shiffrin, supra). Finally, the early 1940s saw widespread violence against Jehovah’s Witnesses, and it is possible that the Court felt Gobitis had contributed to the attacks.

3. Is Barnette a freedom of religion case or a freedom of speech case? As a practical matter, what difference does this make?

4. No prescriptions of orthodoxy? A good deal of Barnette’s fame stems from the majestic language of Justice Jackson’s opinion and its defense of the need for judicial review to protect minority rights. Perhaps the most quoted passage among many is the “no orthodoxy” passage near the opinion’s end: “If there is any fixed star.…” As Professor Smith points out, the passage says that “with regard to orthodoxy (a term that derives from Greek and means ‘right opinion’), the state cannot either ‘prescribe’ or ‘force.’ ” Steven D. Smith, Barnette’s Big Blunder, 78 Chi.-Kent L. Rev. 625, 626 (2003). Do American public schools—could any schools—truly refrain from all “prescriptions” of orthodoxy? Apart from the public schools, can the government completely avoid taking positions on what counts as right opinion? Smith suggests that our constitutional discourse would be more honest if Justice Jackson had substituted “and” for “or”: the state may not prescribe and force orthodoxy.

In response to Professor Smith, one can point out that there are limits on the state’s prerogatives to “prescribe” orthodoxy even without force—the793 Establishment Clause is one. But efforts to articulate what those limits might be are not easy, cf. Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982), reprinted in Chapter 10, and the inspiring but overbroad formulation in Barnette does not help to identify them.

5. Other rationales. The school prayer cases teach that composing prayers is no part of the business of the public schools, but—despite the “no orthodoxy” language—Barnette doesn’t question that political socialization is part of the business of the public schools. The problem would seem to be more about means than ends. Barnette can be seen as a limit on compelled political socialization (where the bar for compulsion is higher than the “coercion” in Lee v. Weisman) or as a bar against compelled speech. See Wooley v. Maynard, 430 U.S. 705 (1977) (New Hampshire could not require residents to display state motto of “Live Free or Die” on license plates because the right not to speak is a “complementary component” of the First Amendment). Even apart from the strong legal compulsion in Barnette, perhaps there is something problematic about using ritual to socialize young children rather than trying to win their allegiance through rational persuasion. See generally Brent T. White, Ritual, Emotion, and Political Belief: The Search for the Constitutional Limit to Patriotic Education in the Public Schools, 43 Ga. L. Rev. 447 (2009) (arguing that most patriotic education takes place through ritualized practices in early childhood and that the resulting emotional conditioning is “not easily jettisoned”).

2. The Pledge of Allegiance and Ceremonial Deism

Careful readers will have noted that the Pledge of Allegiance at issue in Barnette did not contain the words “under God.” Those words were added in 1954 at the height of the Cold War. “Under God” was clearly intended to contrast American ideals with Soviet ones, though differing accounts of that contrast are possible. Compare Caroline Corbin, Ceremonial Deism and the Reasonable Religious Outsider, 57 UCLA L. Rev. 1545, 1550 n.19 (2010) (“the explicit mention of God was meant to contrast the godly citizens of the USA with the godless communists of the USSR”), with Thomas Berg, The Pledge of Allegiance and the Limited State, 8 Tex. Rev. L. & Pol. 41, 44 (2003) (“Under God” “express[es] the idea that our Nation’s government is limited in status and must recognize inalienable rights that have a transcendent status because they come from God.”). For a detailed account of the relevant history, see Steven G. Gey, “Under God,” the Pledge of Allegiance, and Other Constitutional Trivia, 81 N.C. L. Rev. 1865 (2003).

The post-1954 Pledge creates something of a dilemma for Establishment Clause jurisprudence. Though it can fairly be said that public school recitation of the Pledge is principally a patriotic exercise rather than a religious one, having students declare their allegiance to a nation “under God” (at the very least) seems an implicit assertion that God exists. On one prominent understanding, the core meaning of the Establishment Clause is that the government should not declare religious truth. See, e.g., Andrew Koppelman, Secular Purpose, 88 Va. L. Rev. 87, 88 (2002) (“What the state may not do—what [Establishment Clause] doctrine properly forbids it to do—is to declare any particular religious doctrine794 to be the true one, or enact laws that clearly imply such a declaration of religious truth.”). From the standpoint of the endorsement test, things look still worse. If, as Justice Frankfurter eloquently described in Gobitis, 310 U.S. at 595-605, the Pledge ceremony is about fostering national unity and forging common identity, then including the phrase “under God” in the Pledge is akin to saying that real Americans believe in God. What could more clearly divide students into religious insiders and religious outsiders? Even these brief points are sufficient to suggest that including “under God” in the Pledge stands in some tension with the Court’s official Establishment Clause doctrine. That is one horn of the dilemma.

Two points constitute the other horn. First, the Court has repeatedly opined that many public ceremonial references to God (including the Pledge) are constitutionally permissible. Dicta along these lines go all the way back to Engel v. Vitale, 370 U.S. 421, 435 n.21 (“Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.”). Second, the Supreme Court rarely strays very far or for very long from public understandings of constitutional meaning. See generally Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009). To say the least, striking the words “under God” from the Pledge would not comport with (most) public understandings of constitutional meaning.

Lower courts have generally concluded that if push comes to shove, the Supreme Court would favor the second horn of the dilemma. See Sherman v. Cmty. Consol. Sch. Dist., 980 F.2d 437 (7th Cir. 1992) (upholding Pledge against Establishment Clause challenge so long as students have the right not to participate). In 2003, however, a divided panel of the Ninth Circuit ruled that including “under God” in the Pledge violated the Establishment Clause under the Lemon test, the endorsement test, and the coercion test. Newdow v. U.S. Congress, 328 F.3d 466 (9th Cir. 2003), rev’d on other grounds, 542 U.S. 1 (2004). Unsurprisingly, the Ninth Circuit decision created a national uproar, which included federal legislation reaffirming the inclusion of “under God” in the Pledge of Allegiance. The Supreme Court granted certiorari, and in a 5-3 decision (Justice Scalia having recused himself because of public comments about the case) reversed the Ninth Circuit on the ground that the plaintiff lacked prudential standing. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). The Court’s ruling on standing made it unnecessary to reach the merits, but three Justices (Rehnquist, O’Connor, and Thomas) who thought the plaintiff had standing explained in concurring opinions why they thought the Pledge was constitutional.

NOTES AND QUESTIONS

1. What does “under God” mean in the context of the Pledge of Allegiance? That the United States exists under God’s providence? Under God’s authority? That Americans believe in and submit to God? That the state is limited by God? That belief in God is an important part of our history? What, if anything, did it mean to you as a public school student? What does it mean to you now?

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2. Coercion. After Barnette, it is clear that schools cannot legally compel participation in the Pledge of Allegiance—with or without the words “under God.” Yet, as Justice Thomas argues in his opinion concurring in the judgment, the degree of pressure students experience to participate fully in the Pledge is probably greater than the pressure experienced by dissenting students in Lee v. Weisman, and the pressure is more clearly attributable to the state. (Do you agree? If so, what factors explain the difference?) Chief Justice Rehnquist distinguished Weisman, by stating that the Pledge is a patriotic and not a religious observance, but that is simply to assert that if the Pledge is constitutional, the state is allowed to use more pressure to shape students’ political values than to shape their religious values. Does that make sense? Why or why not?

3. Ceremonial deism. Justice O’Connor would have upheld the Pledge based on a four-factor test for deciding when government religious expression constitutes “ceremonial deism”: references to God or religion that “employ[] the idiom for essentially secular purposes.” Id. at 35 (O’Connor, J., concurring). The four factors are the history and ubiquity of the expression/practice, the absence of worship or prayer, the absence of reference to any particular religion, and the minimal religious content of the expression. What are the arguments pro and con on each of these factors? How would Justice O’Connor’s test apply to Ten Commandments monuments of the sort considered infra in Section C.1?

Whatever you might think of the four factors and their application to this case, note that to call “under God” an instance of ceremonial deism is to say that, as used in the Pledge, these words only appear to have religious significance. Does Justice O’Connor’s view satisfactorily explain the public response to the Ninth Circuit’s original Newdow decision?

If Justice O’Connor is correct that the government’s repeated use of religious language can drain that language of religious meaning, should this be understood as supporting or undermining the argument that the Establishment Clause should permit government invocations of God?

4. Well, is “under God” constitutional? The Supreme Court did not decide this question in its Newdow opinions, but in 2010 a different panel of the Ninth Circuit ruled that the inclusion of “under God” in the Pledge did not violate the Establishment Clause. Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010); see also Myers v. Loudoun Cnty. Sch., 418 F.3d 395 (4th Cir. 2005). It appears that “under God” is safe from judicial invalidation for the foreseeable future; whether this result can be convincingly reconciled with the rest of Establishment Clause doctrine is a more difficult question.

PROBLEM

You work for a state legislator who represents a rural district in the State of Disrepair. Your boss plans to introduce the following bill:

All principals and teachers in both public and private schools shall cause the Flag of the United States of America to be displayed in every classroom during the hours of each school day and shall provide for the recitation of the Pledge of Allegiance or the national anthem at796 the beginning of each school day. Students may decline to recite the Pledge of Allegiance and may refrain from saluting the flag on the basis of religious conviction or personal belief. The principal of a school subject to the requirements of this subsection shall provide written notification to the parents or guardian of any student who declines to recite the Pledge of Allegiance or who refrains from saluting the flag.

She has asked for your advice about whether the bill violates the U.S. Constitution. What will you tell her?

C. RELIGIOUS DISPLAYS, MUSIC, AND HOLIDAYS

Although school prayer and funding religious schools are the topics most frequently addressed by the U.S. Supreme Court, Establishment Clause questions about the presence of religion in the public schools can arise in many other contexts. Here are a few examples.

1. Displays of Religious Texts and Symbols

Just as schools may not promote or “endorse” religion through state-sponsored prayer, they may not promote or endorse religion through the display of religious texts and symbols in the learning environment. The seminal Supreme Court case in this area is Stone v. Graham, 449 U.S. 39 (1980) (per curiam), which struck down a Kentucky law requiring that a poster of the Ten Commandments be displayed in every public school classroom. Even though the posters contained (in small print) a notation explaining the “secular application” of the Ten Commandments as the “fundamental legal code of Western Civilization and the Common Law of the United States,” id. at 41, the Court held that the law violated Lemon because the “Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths” and the “pre-eminent purpose” for posting the text was “plainly religious in nature.” Id.

Given the general nonendorsement principle, the two critical questions in cases involving religious displays are much the same as those encountered in cases involving school prayer and the Pledge of Allegiance: does this display send a message endorsing religion, or is religious material present in the learning environment for some secular educational purpose? Is this display properly attributed to the school? Regarding the first question, compare Washegesic v. Bloomingdale Pub. Schs., 33 F.3d 679 (6th Cir. 1994) (solo display of a copy of a famous portrait of Jesus in school hallway violated the Establishment Clause), with Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017 (10th Cir. 2008) (elementary school mural could permissibly include three crosses along with secular images of the community because the crosses were part of the city seal and were connected to the name, Las Cruces, which means “the Crosses” in Spanish). Regarding the second, compare Warnock v. Archer, 380 F.3d 1076, 1082 (8th Cir. 2004) (display of framed scriptural quotation in superintendent’s797 office did not violate the Establishment Clause), with Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 972-973 (9th Cir. 2011) (school acted on reasonable Establishment Clause concerns in prohibiting a math teacher from displaying two very large banners in his classroom bearing phrases such as “In God We Trust,” “One Nation Under God,” and “God Bless America”).

In 2005, the Supreme Court decided a pair of cases involving government displays of the Ten Commandments outside the public schools. McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844 (2005) (Ten Commandments display inside courthouse as part of display of documents claimed to show the “Foundations of American Law and Government” was unconstitutional); Van Orden v. Perry, 545 U.S. 677 (2005) (Ten Commandments monument on state capitol grounds in the context of a variety of monuments about Texan identity was constitutional). Each case produced multiple opinions and was decided by a 5-4 vote, with only Justice Breyer voting with the majority in both cases. Despite the uncertainty generated by these cases about government displays in contexts outside the public schools, they do not appear to change the result in Stone. See Van Orden, 545 U.S. at 690-691 (Rehnquist, C.J., plurality opinion).

2. Religious Music

A great deal of the choral music in the Western tradition is religious. May school choirs sing religious songs at school concerts and other school events? As will be familiar by now, the answer depends on context. While some uses of religious music are clearly out of bounds, see Skarin v. Woodbine Cmty. Sch. Dist., 204 F. Supp. 2d 1195 (S.D. Iowa 2002) (choir singing the Lord’s prayer at graduation ruled unconstitutional), courts have generally permitted the inclusion of religious music in school choir programs, see, e.g., Bauchman v. W. High Sch., 132 F.3d 542 (10th Cir. 1997) (affirming dismissal of a Jewish student’s complaint that her Mormon choir director chose predominantly Christian devotional music for choir programs and required students to perform at religious venues dominated by Christian imagery); Doe v. Duncanville Indep. Sch. Dist,, 70 F.3d 402 (5th Cir. 1995) (high school choir’s use of “The Lord Bless and Keep You” as its theme song ruled constitutional). For an argument that these cases may be too permissive, see Kent Greenawalt, Does God Belong in the Public Schools? 51-54 (2005). What if a school decides not to include religious music in choral performances? Does that violate the Establishment Clause by showing hostility to religion? See Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 587 F.3d 597 (3d Cir. 2009) (upholding school policy prohibiting performance of “celebratory religious music” at school events).

3. Religious Holidays

Religious music in schools is often tied to the recognition of religious holidays generally. The leading case on the topic is Florey v. Sioux Falls School District, 619 F.2d 1311 (8th Cir. 1980). Its basic lesson is that schools may recognize and study798 religious holidays for educational purposes, but may not promote the observance of religious holidays. (This is, of course, a more specific formulation of the general maxim that schools may teach about religion, but may not “teach religion.”) In Florey, a school board formulated new guidelines for school treatment of holidays in response to complaints about public school Christmas assemblies. The new policy stated:

The several holidays throughout the year which have a religious and a secular basis may be observed in the public schools.
The historical and contemporary values and the origin of religious holidays may be explained in an unbiased and objective manner without sectarian indoctrination.
Music, art, literature, and drama having religious themes or basis are permitted as part of the curriculum for school-sponsored activities and programs if presented in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday.
The use of religious symbols such as a cross, menorah, crescent, Star of David, crèche, symbols of Native American religions, or other symbols that are a part of a religious holiday is permitted as a teaching aid or resource provided such symbols are displayed as an example of the cultural and religious heritage of the holiday and are temporary in nature. Among these holidays are included Christmas, Easter, Passover, Hannukah, St. Valentine’s Day, St. Patrick’s Day, Thanksgiving, and Halloween.
The school district’s calendar should be prepared so as to minimize conflicts with religious holidays of all faiths.

Id. at 1319-1320. The Eighth Circuit upheld this policy against a challenge that the policy violated the Establishment Clause on its face. See also Clever v. Cherry Hill Twp. Bd. of Educ., 838 F. Supp. 929 (D.N.J. 1993) (policy mandating display of school calendars marked with “cultural, ethnic, and religious” holidays and allowing inclusive holiday displays for up to ten days was not facially unconstitutional).

In cases like Florey, the school’s prior practices essentially celebrated Christmas; the litigated question was how far the school had to scale back Christian observances to comply with the Establishment Clause. No doubt there are many communities where the questions, if litigated, still take the same form. See, e.g., Freedom from Religion Found. v. Concord Cmty. Sch., 2015 WL 7776561 (N.D. Ind. 2015) (striking down a 20-minute living nativity scene included within a high school’s “Christmas Spectacular” holiday show). Today, however, one also sees holiday litigation with different dynamics. In Skoros v. City of New York, 437 F.3d 1 (2d Cir. 2006), the plaintiffs challenged a school policy that permitted the display of only secular holiday symbols, treating Christmas trees, menorahs, and the star and crescent (a symbol associated with Ramadan) as secular, but excluding nativity scenes as religious. The Court rejected the plaintiff’s claim that the policy was an unconstitutional endorsement of Judaism and Islam in preference to Christianity. Are menorahs and the star and crescent less religious than the crèche? Are courts well placed to decide that question?

PROBLEM

Branson West High School opened in the fall of 1955 to accommodate the growing suburban population of Branson, Missouri. Branson West was799 constructed in phases, with its stand-alone auditorium building opening in December of 1958. In its early days, Branson West’s population included junior high school students. The first group of high school graduates was the Class of 1959.

During the school’s first academic year, only seventh and eighth graders were in attendance. The student council selected the school’s mascot and team colors, and a seventh grader by the name of Michael Bradford was assigned the task of authoring the school’s creed and school prayer. As was the widespread custom of the time, Branson West opened its school day with the recitation of the Lord’s Prayer. After the school prayer was adopted by the student council and approved by the administration in 1956, it was recited every morning instead of the Lord’s Prayer. In February of 1959, a guest op-ed piece in the Branson Herald caused a stir by suggesting that prayer should be a private matter carried on at home and in church, but not in the public schools. The administration, staff, and students of Branson West remained (with a few exceptions) steadfast in their commitment to beginning each day with the school prayer. Around 1962, Branson West ceased recitations of the school prayer in response to the U.S. Supreme Court’s decision in Engel v. Vitale, 370 U.S. 421 (1962).

In the beginning of the 1959-1960 academic year, the Class of 1959 presented to the school a gift of two murals, one with the school creed and one with the school prayer, to decorate the walls of the new auditorium. The murals had been painted by a professional, and were installed on either side of the auditorium’s stage. Although the plans for the murals had been approved by the school administration at every phase, all the expenses of creating the murals were paid through fund-raising undertaken by the Class of 1959.

The murals are large, approximately 8 feet in height and 4 feet wide. According to some witnesses, their text is visible throughout the auditorium and legible from much of the room because each letter is approximately 3 inches tall and 2 inches wide. The murals are painted on paper, and affixed directly onto the auditorium’s walls. Someone with a first-hand memory recalled that borders had originally been painted around the edge of the murals, along with a notation that they were gifts of the Class of 1959. The borders and gift notation are no longer visible. Presumably they were covered when the auditorium was repainted in 1990. In late 2005, the school administration placed a plaque on the wall beneath the School Prayer mural which reads, “The auditorium murals are a gift from the Class of 1959, the first class to graduate from Branson West High School.”

Each mural bears an illustration at the top, a title, and then the text below. The prayer mural hangs on the right-hand side of the stage and reads as follows:

School Prayer

Our Heavenly Father, grant us each day the desire to do our best, to grow mentally and morally as well as physically, to be kind and helpful to our classmates and teachers, and to be honest with ourselves as well as with others. Help us to be good sports and smile when we lose as well as when we win, teach us the value of true friendship, and help us always to conduct ourselves so as to bring credit to Branson West High School. Amen.

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On the other side of the stage is the School Creed, which states:

School Creed

Today, I will do my best to be my best. I come to school each day to work, to study, and to learn. I know that what I do today, and how I act today, determines the adult I will one day become. I will listen and follow directions. I will read much and study hard. I will respect my teachers and my classmates. I can learn, and I will learn.

The auditorium walls are also lined with decorative cloth banners and gifts from subsequent graduating classes. Each gift is marked with a notation identifying the class that gave it. Other class gifts, monuments, and markers can be found at other locations around the school. The auditorium is used frequently by the student body for mandatory assemblies, as well as non-required extracurricular activities. The auditorium is also used by the faculty, parents, and other members of the community.

Jane Doe, an eleventh grader at Branson West and an avowed atheist, has filed a lawsuit arguing that the display of the school prayer violates the Establishment Clause. The case has attracted considerable public attention—mostly negative—to Ms. Doe. School officials have argued in the press that it would be wrong to remove a mural given by Branson West’s first graduating class when the gifts of other classes are proudly displayed throughout the school. Should the court order the removal of the school prayer mural?

D. ESTABLISHMENT CLAUSE LIMITS ON THE FUNDING OF PRIVATE RELIGIOUS EDUCATION

As the previous sections demonstrate, the Establishment Clause prohibits the public schools from leading religious exercises, engaging in religious instruction, or otherwise promoting religion. These are limits on the government’s vast powers of communication and persuasion, powers made more formidable by the power to compel school attendance. This section deals with a different government power: the power of the purse. A key feature of classical religious establishments was taxation in support of the church, and this issue was at the heart of debates about church-state relations in the founding era. Much of modern Establishment Clause doctrine has also been shaped by questions about using tax dollars to support religion, and the bulk of the case law has been about government efforts to subsidize private religious schools. A few basic points provide the context.

While the Establishment Clause works to limit the government’s religious communication, those limits do not apply to private schools.⁸ Private schools can promote religion in whatever ways they see fit, and most private schooling from colonial times to the present has been religious. Further, parents have a801 constitutional right to choose private religious (or secular) schools over public schools. Pierce v. Society of Sisters, 268 U.S. 510 (1925). Exercising the Pierce right, however, has a cost. Parents who pay for private religious education are not exempt from paying taxes that support the free system of public education, and thus some of them argue that they are unfairly “paying twice” for their children’s educations. (One response to this argument is that public schools are a public good which generates positive externalities for the entire community. Taxpayers with no children also support the public schools that they “do not use,” and they have no choice in the matter.) Whatever the merits of the “paying twice” charge, it creates a natural constituency supporting state funding of private education, and thus generates recurring questions about how far the state may go to accommodate that constituency. As you will see, the Court’s answers to those questions have changed dramatically over the last four decades.

The materials in this section deal with two questions. The historically more important question has been:

May the state choose to fund private religious schools without violating the Establishment Clause?

The section traces the history of the Supreme Court’s responses to this question and its movement from a strong presumption against state aid to private religious education toward wide acceptance today. Today, acceptance is sufficiently complete that one must also ask a second question:

If the state chooses to fund private secular education, does it have to fund private religious education as well?

The modern Establishment Clause begins with Everson v. Board of Education, 330 U.S. 1 (1947), which concerned a New Jersey statute authorizing the reimbursement of bus fare to parents who sent their children to private religious schools on city buses. The case contains the seeds of all the moves that would define the Court’s funding jurisprudence for the next 60 years. As Professor Laycock explains, that jurisprudence has been a battle for supremacy between a no-aid principle and a nondiscrimination principle. Douglas Laycock, Why the Supreme Court Changed Its Mind About Government Aid to Religious Institutions: It’s a Lot More Than Just Republican Appointments, 2008 B.Y.U. L. Rev. 275. All nine Justices in Everson agreed with Justice Black’s vision of a wall of separation that would prevent any government aid from flowing to religious institutions: “No tax in any amount, large or small, can be levied to support any religious activities or institutions.” Everson, 330 U.S. at 16. This no-aid principle dominated the opinions rhetorically, and the four dissenting Justices thought it obvious that using tax dollars to pay for transportation to religious schools violated that principle. Nevertheless, the majority upheld the transportation reimbursements for parochial school parents by appealing to the nondiscrimination principle: “[the state] cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits802 of public welfare legislation.” Id. Transportation to school was a public welfare benefit that could be made available to all (like police and fire protection). The Court has spent the years since Everson working out whether the no-aid and nondiscrimination principles can peacefully (and coherently) coexist.

Schematically, the story can be divided into three periods. From 1947 to 1971, the Court decided only two cases involving aid to private religious schools, Everson and Board of Education v. Allen, 392 U.S. 236 (1968). Both cases used the language of separation but approved the aid in question: bus rides in Everson, loans of secular textbooks in Allen. From 1971 to 1985, the Court gave precedence to the no-aid principle (with limited exceptions). From 1986 to the present, the Court has reversed course, increasingly favoring the nondiscrimination principle and arranging its doctrine around a distinction between direct and indirect aid (a/k/a aid distributed through mechanisms of private choice). Faculty or students wishing to explore the first two periods of this history can do so via the weblinks provided for Sections D.1 and D.2 below. Others may wish to skip directly to the current law as described in D.3 through D.7.

1. Everson: One Case, Two Principles

As described in this section’s introduction, Everson v. Board of Education, 330 U.S. 1 (1947), is the seminal school funding case. In addition to articulating both no-aid and non-discrimination arguments, Everson was also influential in looking to history for the meaning of the Establishment Clause, particularly the history of James Madison’s battle in Virginia against taxes levied for the support of the church. For an excerpt of Everson and notes and questions on the history it recounts, see this casebook’s online supplement at http://www.aspenlawschool.com/books/education_law.

2. The Rise of the Lemon Test, 1971 to 1985: No-Aid Separationism and the Prohibition on Entanglement

The no-aid principle gained the upper hand in Lemon v. Kurtzman, 403 U.S. 602 (1971), which announced the three-prong Establishment Clause test that bears its name. Between 1971 and the mid-1980s, the Court developed interpretations of Lemon’s primary effects and entanglement prongs that rendered unconstitutional most aid to religious schools. For notes explaining how the Lemon test was employed during this period, see this casebook’s online supplement at http://www.aspenlawschool.com/books/education_law.

3. The Tide Turns: The Rise of the Nondiscrimination Principle and the Distinction Between Direct and Indirect Aid

It is difficult to identify history’s turning points, but commentators generally agree that the Supreme Court began to change course in its Establishment803 Clause funding jurisprudence during the mid-1980s. Summarizing very broadly, the Court’s views changed in three ways. First, the Court put progressively greater emphasis on the nondiscrimination principle by using the language of neutrality. Money and resources flowing to religious institutions under facially neutral (i.e., nonreligious) criteria were increasingly seen not as “aiding” religion, but as according it “equal treatment.” Second, the Court adopted a distinction between direct and indirect aid, reasoning that money flowing to religious institutions indirectly through intervening private choices did not constitute government advancement of religion. Third, the Court modified the Lemon test in direct aid cases by abandoning the Catch-22⁹ interpretation of the entanglement prong.¹⁰ These three changes combined to produce the current state of the law as described in sections D (Mitchell v. Helms) and E (Zelman v. Simmons Harris). In a nutshell, that law states that indirect aid distributed on religiously neutral criteria through mechanisms of true private choice is constitutional even if the aid ultimately supports religious instruction. Direct aid, in contrast, is constitutional if it is distributed according to religiously neutral criteria, secular in content, and not actually diverted to religious use.

a. Neutrality

An early decision that emphasized neutral criteria was Mueller v. Allen, 463 U.S. 388 (1983). In Mueller, taxpayers challenged a Minnesota law that allowed families to deduct up to $500 per dependent for educational expenses (including tuition) at any public or nonprofit private school. Four dissenting Justices thought the case was controlled by Committee for Public Education v. Nyquist, 413 U.S. 756 (1973): “A tax deduction has a primary effect that advances religion if it is provided to offset expenditures which are not restricted to the secular activities of parochial schools.” Mueller, 463 U.S. at 413 (Marshall, J., dissenting). Further, it was undisputed that more than 90 percent of the families paying tuition for primary and secondary education in Minnesota sent their children to private religious schools. The majority, however, emphasized that—unlike the tax credits in Nyquist—the Minnesota tax deductions were available to all parents with school-age children. Id. at 397. Broadening the characterization of the beneficiary class still further, the Court noted that the tax deduction for educational expenses was only one of a broad array of tax deductions that the Minnesota legislature regarded as “fairly equaliz[ing] the tax burden of its citizens.” Id. at 396. Quoting Widmar v. Vincent, 454 U.S. 263, 277 (1981), the Court observed that “the provision of benefits to so broad a spectrum of groups is an important index of secular effect.” Mueller, 463 U.S. at 397.

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The reference to Widmar draws attention to the interactions between two lines of cases (school funding and equal access) that have been developing since the 1980s. You will study the second line of cases in Section F of this chapter, but a brief summary of Widmar shows how the equal access cases facilitated the rise of the nondiscrimination principle in the funding cases. The question in Widmar was whether the University of Missouri could exclude a student religious group called Cornerstone from meeting in university buildings when the university allowed a wide variety of other student groups to meet there. The Supreme Court held that excluding Cornerstone was discrimination based on the content of the group’s speech, while including them did not “advance religion” but simply gave Cornerstone the same benefits as other groups. The idea that a “building-use subsidy” supporting religious activity was permissible because it was granted on neutral criteria soon expanded within the equal access line of cases and facilitated the triumph of the nondiscrimination principle in the funding cases as well.

b. Indirect Benefits and Private Choice

Another theme that grew in importance from the mid-1980s onward was a distinction between direct aid (i.e., money or resources initially dispensed to religious schools) and indirect aid (i.e., money or resources initially dispensed to individuals or parents and directed to schools through private choice). While Mueller made some use of the private choice theme, that theme took center stage in the Court’s unanimous decision in Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986). The plaintiff in Witters was a blind man who sought to use state vocational rehabilitation funds to study at a private Christian college “to equip himself for a career as a pastor, missionary, or youth director.” Id. at 483. This could have been seen as a replay of the Virginia Assessment controversy—state money would underwrite the training of Christian ministers—yet eligibility for rehabilitation funds was obviously neither aimed at the promotion of religion nor distributed with reference to religious criteria. The Court explained:

It is well settled that the Establishment Clause is not violated every time money previously in the possession of the state is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary. [V]ocational assistance under the Washington program is paid directly to the student, who transmits it to the educational institution of his or her choice. Any aid provided under Washington’s program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.…[Washington’s program] creates no financial incentive for students to undertake sectarian education.

Id. at 486-488. This passage, joined by all nine Justices, makes the case that “genuinely independent private choice” severs the connection between government money and the advancement of religious instruction.

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The Court extended the reasoning of Witters on somewhat more controversial facts in Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993), where it upheld state provision of a sign language interpreter for a deaf student who attended a private religious school. The benefits flowed to the child under a neutral statutory scheme, the Individuals with Disabilities Education Act (IDEA), and the government interpreter was present in a sectarian school only because of a family’s private choices. Nevertheless, the fact that a public employee would “participate directly in religious indoctrination” led two Justices to dissent on the merits.

c. The Demise of the Entanglement Prong

In school funding cases during the separationist era, the key question was whether there were adequate (and nonentangling) guarantees that the government aid would not be used for religious instruction. In Aguilar v. Felton, 473 U.S. 402 (1985), the Court struck down the use of Title I education funds to pay public school teachers to provide remedial (and wholly secular) classes to low-income children on the campuses of religious schools. New York City’s program for monitoring the Title I classes to ensure an absence of religious content ran afoul of the entanglement prong.

In 1995, New York filed suit asking for relief from the permanent injunction entered after the Aguilar decision on the ground that the Court’s intervening decisions had changed the law. The Supreme Court agreed and overruled Aguilar in Agostini v. Felton, 521 U.S. 203 (1997). Writing for the Court, Justice O’Connor explained that subsequent case law had undermined several key assumptions made in Aguilar: “[T]here is no reason to presume that, simply because she enters a parochial school classroom, a full-time public employee such as a Title I teacher will depart from her assigned duties and instructions and embark on religious indoctrination.” Id. at 226. Without that presumption, the Catch-22 aspect of entanglement no longer made sense: “Since we have abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required.” Id. at 234. Having rejected Lemon’s and Aguilar’s approach to the entanglement prong, the Court announced that at least in school funding cases,¹¹ Lemon was now a two-prong test. The Court would examine secular purpose and primary effect, with the latter inquiry asking whether the aid results in governmental indoctrination, whether aid recipients are defined by religious criteria, and whether the aid results in excessive entanglement.

d. Explaining the Rise of the Nondiscrimination Principle

Together, the changes just described have had striking effects. The Supreme Court has not struck down a funding program since 1986, and several806 precedents from the no-aid era have been explicitly overruled or quietly eviscerated. What explains the change? One can point to purely doctrinal explanations, particularly the shift in thinking about baselines that migrated from the equal access cases. One can also point to the fact that new appointments have moved the Supreme Court to the right over the last 40 years. It seems likely, though, that the changes are also responsive to significant attitudinal changes and political realignments in the country. See generally John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 298 (2001). The Justices of the 1970s and earlier had been raised in a world where suspicion of Catholicism was still widespread; anti-Catholicism sharply declined in the 1960s, and today the majority of the Justices are Catholic. Enrollment in evangelical Protestant schools increased dramatically, first in response to desegregation and then in reaction to the perceived secularism of the public schools. Aid to private schools was no longer just a Catholic issue, and evangelicals and Catholics became allies in the fight for funding private religious schools. Further support came from school choice advocates, who saw increased aid for private schools as a way to promote competition in the “education market.” Finally, many black families saw private school aid as a way to escape failing public school systems. The changing politics of private school aid have likely pushed the Court to back away from this area and leave decisions to the political process.

4. The Current Law on Direct Aid: Mitchell v. Helms

The Court’s most recent decision regarding direct aid to religious organizations is Mitchell v. Helms, 530 U.S. 793 (2000). In Mitchell, a Louisiana school district used federal Chapter 2¹² funds to buy supplemental instructional materials and equipment (e.g., library books, computers and software, projectors, lab equipment, globes), which were then loaned to (both religious and secular) private schools. The instructional materials were themselves free of religious content. The amount of aid flowing to the various participating public and private schools was proportional to the schools’ enrollment. The Fifth Circuit had ruled the program unconstitutional on the basis of Meek v. Pittinger, 421 U.S. 349 (1975), and Wolman v. Walter, 433 U.S. 229 (1977), two cases that had invalidated loans of instructional materials to private religious schools on the ground that such materials could be diverted for religious instruction.

As might be expected after Agostini, the Supreme Court upheld the program and overruled Meek and Wolman in the process. The Justices, however, were unable to agree on a common rationale. Justice Thomas’s plurality opinion reasoned that the case turned solely on two factors from Agostini: whether the program defined aid recipients on the basis of religion and whether the program resulted in religious indoctrination attributable to the government. The program obviously defined its recipients in religiously neutral terms, and the plurality found there was no governmental indoctrination because the “program807 determines eligibility for aid neutrally, allocates that aid based on the private choices of the parents of schoolchildren, and does not provide aid that has an impermissible [i.e., religious] content.” Mitchell, 530 U.S. at 829. In so reasoning, the plurality appeared to say that any secular aid offered to religious and nonreligious institutions on a neutral basis was constitutional. Though Mitchell is generally described as a “direct aid” case, the plurality rejected the importance of the direct/indirect distinction. Instead it emphasized that “private choice” could exist even when the aid (here, the instructional materials) never flowed through private hands. The per capita allocation scheme meant that the amount of aid going to religious schools was a function of the private choices of families. Further, the plurality said that even actual diversion of secular instructional materials to religious use would not violate the Establishment Clause. Id. at 820.

Justice O’Connor (joined by Justice Breyer) concurred in the judgment on narrower grounds, and thus her opinion constitutes the controlling law in Mitchell. See Marks v. United States, 430 U.S. 188 (1977) (controlling law is the “position taken by those Members who concurred in the judgments on the narrowest grounds”). Justice O’Connor disagreed with the plurality’s rejection of the indirect/direct aid distinction, reasoning that under the endorsement test per capita direct aid is not the same as the indirect private choice that was present in Witters. “The [per capita] aid formula does not—and could not—indicate to a reasonable observer that the inculcation of religion is endorsed only by the individuals attending the religious school, who each affirmatively choose to direct the secular government aid to the school and its religious mission. No such choices have been made.” Mitchell, 530 U.S. at 842-843. Because Justice O’Connor saw Mitchell as a direct aid case, she concluded that the government aid had to be restricted to secular uses. The plurality was far too loose in saying diversion to religious use was unimportant, while the plaintiffs (and Justice Souter in dissent) were too strict in insisting that “divertibility”—instructional materials like projectors and computers could be used for religious purposes—was enough to invalidate the aid. Id. at 855. To prevail in direct aid cases, plaintiffs would have to prove actual diversion of government aid to religious use.

Following the reasoning of Agostini, Justice O’Connor wrote that failsafe checks against diversion were not needed. Adequate safeguards were enough, and in Mitchell these were present because, among other things, all private schools had to sign assurances that aid would not be used for religious purposes and that the aid would supplement rather than supplant nonfederal funds. Id. at 861-862. Further, the evidence of actual diversion within the program was trivial.¹³ Justice O’Connor summed up her reasons for thinking the program constitutional as follows:

As in Agostini, the Chapter 2 aid is allocated on the basis of neutral, secular criteria; the aid must be supplementary and cannot supplant non-Federal funds; no Chapter 2 funds ever reach the coffers of religious schools; the aid must be secular; any evidence of actual808 diversion is de minimis; and the program includes adequate safeguards. Regardless of whether these factors are constitutional requirements, they are surely sufficient to find that the program at issue here does not have the impermissible effect of advancing religion.

Id. at 867. Justice O’Connor’s Mitchell concurrence extended Agostini in an important respect: Agostini had voiced confidence that public employees working within religious schools would follow the law without extensive monitoring; the Mitchell concurrence extended similar confidence to private school employees working full-time at religious schools. It is also notable that Justice O’Connor’s opinion did not ask whether the schools receiving aid were “pervasively sectarian”; the plurality went further, condemning the label (and the inquiry it presupposed) as “born of bigotry.” Id. at 829 (Thomas, J., concurring). Some lower courts have concluded that the inquiry into whether religious institutions are pervasively sectarian is no longer a proper part of Establishment Clause doctrine. See Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008); Columbia Union Coll. v. Oliver, 254 F.3d 496 (4th Cir. 2001).

Summing up this part of the current law, Justice O’Connor’s Mitchell concurrence still governs direct aid cases, though the line between direct and indirect (or private choice) cases may be difficult to draw. The opinion’s bottom line seems to be that even if direct aid is distributed via neutral secular criteria, there must be adequate safeguards to prevent the aid from being used for religious purposes. With Justice O’Connor’s replacement by Justice Alito, however, it is quite possible that the plurality position in Mitchell would now attract another vote and that the distinction between direct and indirect aid might be shifted to include per capita programs or abandoned altogether. That theory has not yet been put to the test, and there are now two reasons why testing the limits of Mitchell may be less important as a practical matter than it once was. As the next section explains, the Court is now so permissive about indirect aid that governments wishing to support private religious education may choose to structure aid in that manner. Further, the Court has ruled that when support of private schools takes the form of tax credits rather than the actual extraction of taxes, taxpayers do not have standing to challenge the constitutionality of the program. Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011). As Justice Kagan protested in dissent, “[t]he Court’s opinion thus offers a roadmap—more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge. Structure the funding as a tax expenditure, and…[n]o taxpayer will have standing to object.” Id. at 1462 (Kagan, J., dissenting). It seems likely, then, that much government aid to religious schools will now follow one of these paths of lesser resistance. We now turn to the best-known form of indirect aid: school vouchers.

5. The Current Law on Indirect Aid: Vouchers and Zelman v. Simmons-Harris

Vouchers and school choice generally have been a dominant theme in education policy discussions for at least the last two decades. There are four large questions about vouchers:

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(1) Are voucher programs good policy? (Obviously, this question encompasses many subsidiary ones.) (2) Are voucher programs politically viable? (3) Are voucher programs that include religious schools consistent with the federal Establishment Clause? (4) Are voucher programs consistent with state constitutions?

This section addresses the third and fourth questions. The first and second are primarily addressed in Chapter 13, but a few words about them are needed to explain the relationships among the four questions.

Policy support for school vouchers comes from various constituencies discussed earlier in this chapter. Parents who prefer to send their kids to private schools (or would do so if they could afford it) are naturally attracted to the idea of school vouchers. School choice advocates believe that market dynamics are the key to education reform. Accordingly, they may support vouchers as a way to create competition, which, in theory, will improve both public and private schools.¹⁴ Vouchers have also become popular with many inner city (often poor and minority) families who see vouchers as a way to escape failing public schools in their districts. Vouchers have many natural opponents as well, including suburban parents who are mostly happy with their public schools and see vouchers as a threat to those schools. See generally James E. Ryan & Michael Heise, The Political Economy of School Choice, 111 Yale L.J. 2043 (2002).

Until relatively recently, the complex questions of policy and politics regarding school vouchers were largely academic. If voucher programs included religious schools, government money would pay tuition costs that included religious instruction, and it was generally (and plausibly) assumed that this would violate the federal Establishment Clause. Voucher programs excluding religious schools would likely pose no federal constitutional problems, but they would not create much school choice (or competition) because most private schools in most communities are religious. It seemed, then, that the federal Constitution made school voucher programs a nonstarter.

As the nondiscrimination principle displaced the no-aid principle in the Court’s Establishment Clause jurisprudence from the mid-1980s to the present, school vouchers became a live issue. By century’s end, the Court’s embrace of the “private choice” idea suggested that vouchers to religious schools might be constitutional, and during the 1990s Milwaukee and Cleveland launched voucher programs that gave poor children in failing inner city schools the option to attend private secular and religious private schools with public support. The Milwaukee program was upheld by the Wisconsin Supreme Court in Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), but the Supreme Court denied certiorari.810 After the Sixth Circuit struck down the Cleveland program, the Supreme Court addressed the constitutionality of school vouchers in the following case.

Zelman v. Simmons-Harris

536 U.S. 639 (2002)

Chief Justice Rehnquist delivered the opinion of the Court.

The State of Ohio has established a pilot program designed to provide educational choices to families with children who reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause of the United States Constitution. We hold that it does not.

There are more than 75,000 children enrolled in the Cleveland City School District. The majority of these children are from low-income and minority families. Few of these families enjoy the means to send their children to any school other than an inner-city public school. For more than a generation, however, Cleveland’s public schools have been among the worst performing public schools in the Nation. In 1995, a Federal District Court declared a “crisis of magnitude” and placed the entire Cleveland school district under state control. Shortly thereafter, the state auditor found that Cleveland’s public schools were in the midst of a “crisis that is perhaps unprecedented in the history of American education.” The district had failed to meet any of the 18 state standards for minimal acceptable performance. Only 1 in 10 ninth graders could pass a basic proficiency examination, and students at all levels performed at a dismal rate compared with students in other Ohio public schools. More than two-thirds of high school students either dropped or failed out before graduation.

It is against this backdrop that Ohio enacted, among other initiatives, its Pilot Project Scholarship Program. The program provides financial assistance to families in any Ohio school district that is or has been “under federal court order requiring supervision and operational management of the district by the state superintendent.” Cleveland is the only Ohio school district to fall within that category.

The program provides two basic kinds of assistance to parents of children in a covered district. First, the program provides tuition aid for students in kindergarten through third grade, expanding each year through eighth grade, to attend a participating public or private school of their parent’s choosing. Second, the program provides tutorial aid for students who choose to remain enrolled in public school.

The tuition aid portion of the program is designed to provide educational choices to parents who reside in a covered district. Any private school, whether religious or nonreligious, may participate in the program and accept program students so long as the school is located within the boundaries of a covered district and meets statewide educational standards. Participating private schools must agree not to discriminate on the basis of race, religion, or ethnic background, or to “advocate or foster unlawful behavior or teach hatred of811 any person or group on the basis of race, ethnicity, national origin, or religion.” Any public school located in a school district adjacent to the covered district may also participate in the program. Adjacent public schools are eligible to receive a $2,250 tuition grant for each program student accepted in addition to the full amount of per-pupil state funding attributable to each additional student.

Tuition aid is distributed to parents according to financial need. Families with incomes below 200% of the poverty line are given priority and are eligible to receive 90% of private school tuition up to $2,250. For these lowest income families, participating private schools may not charge a parental copayment greater than $250. For all other families, the program pays 75% of tuition costs, up to $1,875, with no copayment cap. Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school.

The tutorial aid portion of the program provides tutorial assistance through grants to any student in a covered district who chooses to remain in public school. Parents arrange for registered tutors to provide assistance to their children and then submit bills for those services to the State for payment. Students from low-income families receive 90% of the amount charged for such assistance up to $360. All other students receive 75% of that amount. The number of tutorial assistance grants offered to students in a covered district must equal the number of tuition aid scholarships provided to students enrolled at participating private or adjacent public schools.

The program has been in operation within the Cleveland City School District since the 1996–1997 school year. In the 1999–2000 school year, 56 private schools participated in the program, 46 (or 82%) of which had a religious affiliation. None of the public schools in districts adjacent to Cleveland have elected to participate. More than 3,700 students participated in the scholarship program, most of whom (96%) enrolled in religiously affiliated schools. Sixty percent of these students were from families at or below the poverty line. In the 1998–1999 school year, approximately 1,400 Cleveland public school students received tutorial aid. This number was expected to double during the 1999–2000 school year.

The program is part of a broader undertaking by the State to enhance the educational options of Cleveland’s schoolchildren in response to the 1995 takeover. That undertaking includes programs governing community and magnet schools. Community schools are funded under state law but are run by their own school boards, not by local school districts. These schools enjoy academic independence to hire their own teachers and to determine their own curriculum. They can have no religious affiliation and are required to accept students by lottery. During the 1999–2000 school year, there were 10 startup community schools in the Cleveland City School District with more than 1,900 students enrolled. For each child enrolled in a community school, the school receives state funding of $4,518, twice the funding a participating program school may receive.

Magnet schools are public schools operated by a local school board that emphasize a particular subject area, teaching method, or service to students. For812 each student enrolled in a magnet school, the school district receives $7,746, including state funding of $4,167, the same amount received per student enrolled at a traditional public school. As of 1999, parents in Cleveland were able to choose from among 23 magnet schools, which together enrolled more than 13,000 students in kindergarten through eighth grade. These schools provide specialized teaching methods, such as Montessori, or a particularized curriculum focus, such as foreign language, computers, or the arts.

[The Court summarized the procedural history of the case. At the prior stage of that history, the Sixth Circuit had ruled that the Cleveland voucher program had the primary effect of advancing religion and thus violated the Establishment Clause.]

The Establishment Clause of the First Amendment, applied to the States through the Fourteenth Amendment, prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion. Agostini v. Felton, 521 U.S. 203, 222-23 (1997). There is no dispute that the program challenged here was enacted for the valid secular purpose of providing educational assistance to poor children in a demonstrably failing public school system. Thus, the question presented is whether the Ohio program nonetheless has the forbidden “effect” of advancing or inhibiting religion.

To answer that question, our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals. While our jurisprudence with respect to the constitutionality of direct aid programs has “changed significantly” over the past two decades, our jurisprudence with respect to true private choice programs has remained consistent and unbroken. Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.

[The Court summarized its decisions in Mueller, Witters, and Zobrest. Each of these cases is covered above in the notes.]

Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.

We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to813 provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools.

There are no “financial incentive[s]” that “ske[w]” the program toward religious schools. Witters, supra, at 487–88. Such incentives “[are] not present…where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.” Agostini, supra, at 231. The program here in fact creates financial disincentives for religious schools, with private schools receiving only half the government assistance given to community schools and one-third the assistance given to magnet schools. Adjacent public schools, should any choose to accept program students, are also eligible to receive two to three times the state funding of a private religious school. Families too have a financial disincentive to choose a private religious school over other schools. Parents that choose to participate in the scholarship program and then to enroll their children in a private school (religious or nonreligious) must copay a portion of the school’s tuition. Families that choose a community school, magnet school, or traditional public school pay nothing. Although such features of the program are not necessary to its constitutionality, they clearly dispel the claim that the program “creates…financial incentive[s] for parents to choose a sectarian school.” Zobrest, 509 U.S. at 10.¹⁵

There also is no evidence that the program fails to provide genuine opportunities for Cleveland parents to select secular educational options for their school-age children. Cleveland schoolchildren enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.

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Justice Souter speculates that because more private religious schools currently participate in the program, the program itself must somehow discourage the participation of private nonreligious schools. But Cleveland’s preponderance of religiously affiliated private schools certainly did not arise as a result of the program; it is a phenomenon common to many American cities. Indeed, by all accounts the program has captured a remarkable cross-section of private schools, religious and nonreligious. It is true that 82% of Cleveland’s participating private schools are religious schools, but it is also true that 81% of private schools in Ohio are religious schools. To attribute constitutional significance to this figure, moreover, would lead to the absurd result that a neutral school-choice program might be permissible in some parts of Ohio, such as Columbus, where a lower percentage of private schools are religious schools, but not in inner-city Cleveland, where Ohio has deemed such programs most sorely needed, but where the preponderance of religious schools happens to be greater.

Respondents and Justice Souter claim that even if we do not focus on the number of participating schools that are religious schools, we should attach constitutional significance to the fact that 96% of scholarship recipients have enrolled in religious schools. They claim that this alone proves parents lack genuine choice, even if no parent has ever said so. We need not consider this argument in detail, since it was flatly rejected in Mueller, where we found it irrelevant that 96% of parents taking deductions for tuition expenses paid tuition at religious schools.

[Further, t]he 96% figure upon which respondents and Justice Souter rely discounts entirely (1) the more than 1,900 Cleveland children enrolled in alternative community schools, (2) the more than 13,000 children enrolled in alternative magnet schools, and (3) the more than 1,400 children enrolled in traditional public schools with tutorial assistance. Including some or all of these children in the denominator of children enrolled in nontraditional schools during the 1999–2000 school year drops the percentage enrolled in religious schools from 96% to under 20%.

In sum, the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.

The judgment of the Court of Appeals is reversed.

Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

Today the majority holds that the Establishment Clause is not offended by Ohio’s Pilot Project Scholarship Program, under which students may be eligible to receive as much as $2,250 in the form of tuition vouchers transferable to religious schools. In the city of Cleveland the overwhelming proportion of large appropriations for voucher money must be spent on religious schools if it is to be spent at all, and will be spent in amounts that cover almost all of tuition.815 The money will thus pay for eligible students’ instruction not only in secular subjects but in religion as well, in schools that can fairly be characterized as founded to teach religious doctrine and to imbue teaching in all subjects with a religious dimension. Public tax money will pay at a systemic level for teaching the covenant with Israel and Mosaic law in Jewish schools, the primacy of the Apostle Peter and the Papacy in Catholic schools, the truth of reformed Christianity in Protestant schools, and the revelation to the Prophet in Muslim schools, to speak only of major religious groupings in the Republic.

How can a Court consistently leave Everson on the books and approve the Ohio vouchers? The answer is that it cannot. It is only by ignoring Everson that the majority can claim to rest on traditional law in its invocation of neutral aid provisions and private choice to sanction the Ohio law. It is, moreover, only by ignoring the meaning of neutrality and private choice themselves that the majority can even pretend to rest today’s decision on those criteria.

[In Part I of his dissent, Justice Souter recounted the history of the Court’s Establishment Clause doctrine as a decline-and-fall narrative from the no-aid principle established in Everson.]

Although it has taken half a century since Everson to reach the majority’s twin standards of neutrality and free choice, the facts show that, in the majority’s hands, even these criteria cannot convincingly legitimize the Ohio scheme.

In order to apply the neutrality test, it makes sense to focus on a category of aid that may be directed to religious as well as secular schools, and ask whether the scheme favors a religious direction. Here, one would ask whether the voucher provisions, allowing for as much as $2,250 toward private school tuition (or a grant to a public school in an adjacent district), were written in a way that skewed the scheme toward benefiting religious schools.

[Justice Souter argued that the majority rendered the neutrality criterion meaningless by counting regular public schools within the district as “participating” in the voucher program.]

If regular, public schools (which can get no voucher payments) “participate” in a voucher scheme with schools that can, and public expenditure is still predominantly on public schools, then the majority’s reasoning would find neutrality in a scheme of vouchers available for private tuition in districts with no secular private schools at all. “Neutrality” as the majority employs the term is, literally, verbal and nothing more.

The majority addresses the issue of choice the same way it addresses neutrality, by asking whether recipients or potential recipients of voucher aid have a choice of public schools among secular alternatives to religious schools. Again,816 however, the majority asks the wrong question and misapplies the criterion. Cases since Mueller have found private choice relevant under a rule that aid to religious schools can be permissible so long as it first passes through the hands of students or parents.¹⁶ The majority’s view that all educational choices are comparable for purposes of choice thus ignores the whole point of the choice test: it is a criterion for deciding whether indirect aid to a religious school is legitimate because it passes through private hands that can spend or use the aid in a secular school. The question is whether the private hand is genuinely free to send the money in either a secular direction or a religious one.

Defining choice as choice in spending the money or channeling the aid is, moreover, necessary if the choice criterion is to function as a limiting principle at all. If “choice” is present whenever there is any educational alternative to the religious school to which vouchers can be endorsed, then there will always be a choice and the voucher can always be constitutional, even in a system in which there is not a single private secular school as an alternative to the religious school.

It is not, of course, that I think even a genuine choice criterion is up to the task of the Establishment Clause when substantial state funds go to religious teaching. The point is simply that if the majority wishes to claim that choice is a criterion, it must define choice in a way that can function as a criterion with a practical capacity to screen something out.

If, contrary to the majority, we ask the right question about genuine choice to use the vouchers, the answer shows that something is influencing choices in a way that aims the money in a religious direction: of 56 private schools in the district participating in the voucher program (only 53 of which accepted voucher students in 1999–2000), 46 of them are religious; 96.6% of all voucher recipients go to religious schools, only 3.4% to nonreligious ones. Unfortunately for the majority position, there is no explanation for this that suggests the religious direction results simply from free choices by parents. Evidence shows that almost two out of three families using vouchers to send their children to religious schools did not embrace the religion of those schools. The families made it clear they had not chosen the schools because they wished their children to be proselytized in a religion not their own, or in any religion, but because of educational opportunity.¹⁷ [Further,] the $2,500 cap that the program places on tuition for participating low-income pupils has the effect of curtailing the participation of nonreligious schools: “nonreligious schools with higher tuition (about $4,000)817 stated that they could afford to accommodate just a few voucher students.” By comparison, the average tuition at participating Catholic schools in Cleveland in 1999–2000 was $1,592, almost $1,000 below the cap.

There is no way to interpret the 96.6% of current voucher money going to religious schools as reflecting a free and genuine choice by the families that apply for vouchers. The 96.6% reflects, instead, the fact that too few nonreligious school desks are available and few but religious schools can afford to accept more than a handful of voucher students.

NOTES AND QUESTIONS

1. Full circle to Everson. In Justice Souter’s Mitchell and Zelman dissents, he laments the Court’s fall away from Everson’s no-aid principle. Yet Everson contained not only the no-aid principle but also the nondiscrimination principle, as Justice O’Connor pointed out in her Zelman concurrence, 536 U.S. at 669-670 (O’Connor, J., concurring). Justice Souter is likely correct that the Justices who decided Everson would be surprised at the result in Zelman; such shifts in constitutional meaning are not uncommon. What seems certain is that in Zelman there was no way for the Court to finesse the conflict between Everson’s two principles. The Court had to choose, and it did.

2. Formal and substantive neutrality. Professor Laycock has drawn a useful distinction between “formal neutrality” and “substantive neutrality” toward religion. Douglas Laycock, Formal, Substantive and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990); Substantive Neutrality Revisited, 110 W. Va. L. Rev. 51 (2007). He explains:

Formal neutrality requires neutral categories. A law is formally neutral if it does not use religion as a category—if religious and secular examples of the same phenomenon are treated exactly the same. Substantive neutrality requires neutral incentives. A law is substantially neutral if it neither “encourages [n]or discourages religious belief or disbelief, practice or nonpractice, observance or nonobservance.”

Laycock, Revisited, supra, at 54-55. Complete neutrality of incentives is sometimes impossible. Where this is so, the goal of substantive neutrality is to minimize government-created incentives for or against religion to the greatest possible extent.

In Zelman and other more recent opinions, the Court usually uses the word “neutrality” to mean formal neutrality. The Cleveland voucher program, the tax credits in Mueller, etc., are all neutral in that they are “religion-blind”: they do not classify aid recipients with reference to religion. Although the Court did not use Professor Laycock’s terminology, Zelman’s emphasis on the need for “true,” “genuine,” and “independent” private choice sounds in the language of substantive neutrality. The Court upholds the voucher program because, in the Court’s view, the availability of vouchers creates no incentives for students to attend private religious schools. Professor Laycock endorses the Zelman decision because he sees the Cleveland voucher program as both formally and substantively neutral. Id. at 70-71, 86-88.

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3. What is the denominator? If the constitutionality of voucher programs turns on the existence of genuine private choice, it is natural to ask about the proportion of private religious options to other options in the overall universe of educational choice. If voucher use at religious schools is the numerator in this analysis, what is the denominator? Compare the answers given by the Court and Justice Souter. Which analysis do you find more persuasive?

Is Justice Souter correct that the Court’s approach to assessing true private choice will uphold any possible voucher program? Would it matter if Cleveland had not implemented tutorial aid, community schools, or magnet schools? Would the voucher program still be constitutional? What if a state made vouchers available to all students and not merely those in struggling inner city schools?

4. In the omitted Part III of his dissent, Justice Souter argues that the voucher program in Zelman undermines three key historical purposes of the Establishment Clause: protecting taxpayer conscience, protecting religion from corruption, and preventing political conflict along religious lines. The first argument is obvious enough, and Justice Breyer develops the third as described in the following note. How does the voucher program threaten to corrupt religion?

5. Justice Breyer’s dissent treats the prevention of religious division as a central concern of the Establishment Clause. Recounting the history of nineteenth-century Protestant-Catholic conflicts over public education discussed in the notes at the beginning of this chapter, Justice Breyer writes:

These historical circumstances suggest that the Court, applying the Establishment Clause through the Fourteenth Amendment to 20th-century American society, faced an interpretive dilemma that was in part practical. The Court appreciated the religious diversity of contemporary American society. It realized that the status quo favored some religions at the expense of others. And it understood the Establishment Clause to prohibit (among other things) any such favoritism. Yet how did the Clause achieve that objective? Did it simply require the government to give each religion an equal chance to introduce religion into the primary schools—a kind of “equal opportunity” approach to the interpretation of the Establishment Clause? Or, did that Clause avoid government favoritism of some religions by insisting upon “separation”—that the government achieve equal treatment by removing itself from the business of providing religious education for children? This interpretive choice arose in respect both to religious activities in public schools and government aid to private education. In both areas the Court concluded that the Establishment Clause required “separation,” in part because an “equal opportunity” approach was not workable.…The upshot is the development of constitutional doctrine that reads the Establishment Clause as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools), but by drawing fairly clear lines of separation between church and state—at least where the heartland of religious belief, such as primary religious education, is at issue.

Zelman, 536 U.S. at 721-723 (Breyer, J., dissenting). Justice Breyer goes on to suggest that the Cleveland voucher program may exacerbate the sorts of religious division that the Court had earlier sought to avoid:

School voucher programs finance the religious education of the young. And, if widely adopted, they may well provide billions of dollars that will do so. Why will different religions819 not become concerned about, and seek to influence, the criteria used to channel this money to religious schools? Why will they not want to examine the implementation of the programs that provide this money—to determine, for example, whether implementation has biased a program toward or against particular sects, or whether recipient religious schools are adequately fulfilling a program’s criteria? If so, just how is the State to resolve the resulting controversies without provoking legitimate fears of the kinds of religious favoritism that, in so religiously diverse a Nation, threaten social dissension?

Id. at 723-724. How realistic are Justice Breyer’s fears? Is political division along religious lines worse than other sorts of political division? See generally Richard W. Garnett, Religion, Division, and the First Amendment, 94 Geo. L. J. 1667 (2006).

Consider also Justice Breyer’s account of the Court’s midcentury Establishment Clause jurisprudence as resting on a practical choice to respond to religious diversity with “separation” rather than “equal opportunity.” Is it fair to say that in a religiously diverse society, separation may be the closest one can come to substantive neutrality in education policy? Is there a third way?

6. After Zelman: Federal Constitutional Developments

Zelman raises its share of unanswered questions. For example, one criticism of voucher programs is that government money brings with it government control and thus threatens religious autonomy. How far may states go in imposing regulations on private schools as a condition of their participation in voucher programs? See, e.g., Thomas C. Berg, Vouchers and Religious Schools: The New Constitutional Questions, 72 U. Cin. L. Rev. 151, 208-220 (2003); Mark Tushnet, Vouchers After Zelman, 2002 Sup. Ct. Rev. 1, 22-29. Yet no matter how the important subsidiary questions are resolved, Zelman at its core means that most school voucher programs will not violate the federal Establishment Clause. After Zelman, the more critical legal obstacles to voucher programs are found in state constitutions. Before moving to those issues in the next section, however, two post-Zelman developments in federal constitutional law need to be covered.

a. Excluding Religion: Locke v. Davey

As noted in the introduction to the school funding cases, the primary question in this area has been whether the state is allowed to fund private religious education. After Zelman, the presumptive answer to that question is “yes.” That answer raises a second question: if the state decides to fund private education, does the federal Constitution require the state to include both secular and religious private education on equal terms? See generally Nelson Tebbe, Excluding Religion, 156 U. Pa. L. Rev. 1263 (2008). The Court confronted one version of this question in Locke v. Davey, 540 U.S. 712 (2004).

In Locke, the state of Washington had created a Promise Scholarship program for its high school graduates who met certain academic and family income criteria. Scholarship recipients could use the scholarships at any accredited postsecondary institution in Washington, secular or religious, but820 scholarship students could not “pursue a degree in theology at that institution while receiving the scholarship.” A “degree in theology” was interpreted to mean a degree that is “devotional in nature or designed to induce religious faith” in keeping with the Washington Supreme Court’s construal of Article I, §11 of the state constitution: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction or the support of any religious establishment.” The plaintiff, Joshua Davey, lost a Promise Scholarship to which he was otherwise entitled because he wished to pursue a pastoral ministries degree at the religious college he was attending. He challenged his exclusion from the scholarship program as a violation of his federal free exercise rights and prevailed on this argument in the Ninth Circuit.

At one level, the issue in Locke was quite general. As will be discussed in the next section, Washington was not unusual in having strongly separationist language in its state constitution. States are ordinarily allowed to interpret their constitutions to provide more protection (here, to taxpayer conscience) than the federal Constitution, but they must respect the floor of rights set by the federal Constitution in doing so. Davey had a potentially strong argument under the federal Free Exercise Clause because the exclusion of theology students from the scholarship program discriminated against religion on its face, a fact that normally entitles the plaintiff to strict scrutiny as the standard of review, as will be explained in more detail in Section E of this chapter. Stated in its broadest terms, then, the key question in Locke was whether the federal Free Exercise Clause would trump facial exclusions of religion that were enacted pursuant to state constitutional separationist values. At another level, however, the case was about something with very specific historical roots: the use of tax dollars to fund the training of ministers.

The Supreme Court ruled against Davey’s free exercise argument on a 7-2 vote. Chief Justice Rehnquist wrote the majority opinion, which emphasized the “play in the joints” between the Establishment Clause and the Free Exercise Clause. While the two clauses are sometimes in tension, “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” 540 U.S. at 718-719. Washington could have chosen to fund theology scholarships, but it was free to use the play in the joints between the clauses to make its own judgment about how stringently to pursue separationist values, particularly in the case of funding pastoral training: “Even though the differently worded Washington Constitution draws a more stringent line than that drawn by the United States Constitution, the interest it seeks to further is scarcely novel. In fact, we can think of few areas in which a State’s antiestablishment interests come more into play.” Id. at 722.

Locke is perhaps best read as a case about federalism and respect for legislative discretion even in the sensitive area of religion, see Ira C. Lupu & Robert W. Tuttle, Federalism and Faith, 56 Emory L.J. 19 (2006), but the opinion’s reliance on the metaphor of “play in the joints” leaves considerable uncertainty about how far these federalist concerns should extend, see Douglas Laycock, Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev. 155 (2004). The specific question for present purposes is whether the Court’s approval of Washington’s821 narrow exclusion for pastoral training should be read to authorize the more general exclusion of religious schools from voucher programs or other forms of state private school funding. Thus far, two federal courts of appeals have addressed Locke’s implications for funding private religious education. Compare Eulitt v. Maine, 386 F.3d 344 (1st Cir. 2004) (relying on Locke to reject a free exercise and equal protection challenge to a Maine law that authorized school districts to fulfill their educational obligations by contracting with private secular schools but not with private religious schools), with Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008) (invalidating state scholarship program’s exclusion of “pervasively sectarian” colleges without ruling on the import of Locke). Are Locke, Eulitt, and Colorado Christian consistent?

In Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d 779 (8th Cir. 2015), the Missouri Department of Natural Resources excluded a church-operated preschool and daycare from a neutral grant program that provided recipient organizations with funds to buy recycled tires for use in resurfacing playgrounds. Including church-operated schools in the grant program would have been permissible under the federal Establishment Clause—do you see why?—but, just as in Locke, the state took the position that its state constitution required a stricter separation of church and state than the federal constitution. The church challenged its exclusion from the playground resurfacing grant program on free exercise grounds, but the Eighth Circuit relied partly on Locke in ruling for the state. As this edition goes to press, the U.S. Supreme Court has granted certiorari. The Supreme Court’s ruling in Trinity Lutheran should provide at least some clarification on how far states may go in embracing “no-aid” separationist principles without violating the federal Free Exercise Clause. How should the Court decide this case, and how does your answer affect the meaning of Locke?

b. The Contraction of Establishment Clause Standing Doctrine: Hein and Winn

Taxpayers have been the typical plaintiffs in school funding lawsuits since Everson. The Court initially addressed the question of taxpayer standing under the Establishment Clause in Flast v. Cohen, 392 U.S. 83, 102-103 (1968), which held that taxpayers have standing to sue if they challenge Congress’s use of the Article I, §8 taxing and spending power and claim that “the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the [t]axing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress.” As the Court regarded the Establishment Clause as such a specific limitation on the taxing and spending power, Flast has provided the basis for standing in all subsequent taxpayer suits under the Establishment Clause.

In Flast’s wake, courts for many years adopted a relatively loose approach to Establishment Clause standing in taxpayer cases and elsewhere. Two recent decisions signal that this is now changing.

822

In Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007), the plaintiff organization tried to challenge conferences for President Bush’s Faith-Based and Community Initiatives program on the ground that the conferences unduly promoted faith-based social services. A three-vote plurality opinion by Justice Alito ruled that the plaintiffs lacked taxpayer standing under Flast because the money for the conferences had come from general congressional appropriations to the executive branch and was routed to the conferences solely by executive branch decisions. Congress had never used its taxing and spending power to appropriate funds for the Faith-Based Initiative in general or the conferences in particular, and the mere fact that the money ultimately came from Congress was not enough to establish standing under Flast. Justices Scalia and Thomas rejected the plurality’s efforts to distinguish Flast, but concurred in the judgment because they thought Flast should be overruled.

In Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (2011), the Court considered a state legislature’s exercise of the taxing power but still found no standing for an Establishment Clause challenge. Arizona law gave dollar-for-dollar tax credits up to $500 for contributions to school tuition organizations (STOs). (In practical terms, this was like giving taxpayers $500 of free money that they could donate to STOs.) The STOs used these contributions to provide scholarships to students at private schools, with most of the scholarship money going to religious private schools. The Supreme Court held on a 5-4 vote that taxpayers had no standing to challenge a tax credit since no money had ever been “extracted” from dissenting taxpayers. Since Congress and state legislatures frequently use tax deductions or tax credits to fund favored institutions or policies, Winn creates an easy way for governments to insulate their actions from Establishment Clause challenge. Id. at 1462 (Kagan, J., dissenting) (explaining that the decision “devastates taxpayer standing in Establishment Clause cases”); accord William P. Marshall & Gene R. Nichol, Not a Winn-Win: Misconstruing Standing and the Establishment Clause, 2011 Sup. Ct. Rev. 215.

These brief summaries do not do justice to the complexities of standing doctrine, but they do suggest that standing doctrine may be just as important as substantive doctrine in determining the future of the Establishment Clause in school funding cases and beyond.

7. After Zelman: State Constitutional Developments

Zelman largely eliminated federal constitutional obstacles to voucher programs. As a result, state experimentation with vouchers and other means of providing public funds for private education has dramatically increased. At this writing, 13 states and the District of Columbia have adopted some form of school voucher program.¹⁸ In addition, 16 states have adopted tax credit scholarship programs823 (sometimes called “neo-vouchers”) like the one at issue in Winn.¹⁹ While voucher and tax credit programs are rapidly gaining ground, they still serve a relatively small number of students—estimated at 250,000 in 2014 by Stephen D. Sugarman, Tax Credit Scholarship Plans, 43 J.L. & Educ. 1, 2-3 (2014)—and dramatic expansion faces significant political obstacles, see generally James E. Ryan & Michael Heise, The Political Economy of School Choice, 111 Yale L.J. 2043 (2002). Most programs thus far have been targeted at students with disabilities, low-income students, and/or students in low-performing schools.

Policy questions regarding vouchers and tax credit scholarship programs are addressed more fully in Chapter 13. Here, the critical point is that even after Zelman, vouchers and analogous programs face challenges under state constitutions. The nature of the challenges varies with the provisions involved.

a. “No-Aid” and “Compelled Support” Clauses

All but three states’ constitutions include provisions that prohibit spending public money to support religious institutions. No-aid clauses, which prohibit spending money for the “aid” or “benefit” of religious schools, appear in the constitutions of 37 states. These provisions are often called “Baby Blaine” amendments because they were enacted in the wake of the failed Blaine amendment to the Federal Constitution.²⁰ Provisions barring the “compelled support” of religious institutions appear in 29 state constitutions. (Some state constitutions include both types of clauses.) These provisions appear to bar the flow of taxpayer money to religious institutions more explicitly than the federal Establishment Clause, and after Locke v. Davey it seems likely that states may use the “play in the joints” between the Establishment and Free Exercise Clauses to insist on greater separation between church and state than the federal Constitution requires. See Eulitt v. Maine, 386 F.3d 344 (1st Cir. 2004). Consequently, no-aid and compelled support clauses may pose significant constitutional obstacles to voucher programs.

Some state courts have relied on the no-aid or compelled support clauses in their constitutions to strike down small-scale voucher programs that included religious schools. Taxpayers for Public Educ. v. Douglas Cnty. Sch. Dist., 351 P.3d 461 (Colo. 2015); Cain v. Horne, 202 P.3d 1178 (Ariz. 2009); Chittenden Town Sch. Dist. v. Vt. Dep’t of Educ., 738 A.2d 539 (Vt. 1999). Proponents of state aid to religious schools can seek to blunt the effect of these clauses in at least three ways. First, they can argue that state no-aid and/or compelled support provisions should be read to incorporate Zelman’s distinction between direct and indirect aid even though the wording of the state provisions seems stricter than the federal Establishment Clause. Two pre-Zelman state court decisions824 accepted the argument that money flowing through parental hands does not constitute state aid to religion, Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999); Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998), and the Indiana Supreme Court recently used similar reasoning to uphold a statewide voucher program for low-income families that is generally regarded as the broadest in the country, Meredith v. Pence, 984 N.E.2d 1213, 1229 (Ind. 2013). Second, aid proponents can argue that no-aid and compelled support provisions in state constitutions were rooted in hostility to Catholicism and hence violate the federal Constitution for that reason. This argument has been extensively debated in the academic literature, see, e.g., Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol’y 551 (2003) (pro); Steven K. Green, The Insignificance of the Blaine Amendment, 2008 BYU L. Rev. 295 (con), but thus far it has rarely been addressed by courts, see Taxpayers for Public Educ., 351 P.3d at 471 (refusing, over a dissent, to consider argument that Blaine Amendment in Colorado Constitution was “bigoted in origin”); Univ. of Cumberlands v. Pennybacker, 308 S.W.3d 668, 681-682 (Ky. 2010) (holding that Kentucky’s no-aid provision was not tainted by the anti-Catholic origins of the federal Blaine amendment). Third, aid proponents can change the nature of the aid from vouchers to scholarship tax credits. The Arizona Supreme Court has interpreted that state’s no-aid clause to bar vouchers for use at religious schools, see Cain, 202 P.3d at 1184, but has upheld scholarship tax credits on the ground that tax credits leave money in the hands of taxpayers and hence do not involve state support of religious schools, see Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999); see also Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) (holding that taxpayers lacked standing to challenge the Arizona tax credit program in federal court). At this point, the scholarship tax credit strategy appears the most promising route for overcoming the obstacles posed by no-aid and compelled support clauses. Is there any practical difference between supporting religious schooling through scholarship tax credits and supporting it through vouchers?

b. Education Clauses

Voucher programs have also been successfully challenged on the basis of state constitutional provisions not related to religion. In one well-known case, the Colorado Supreme Court struck down a voucher program under a state constitutional provision requiring “local control” of public education. Owens v. Colo. Congress of Parents, Teachers & Students, 92 P.3d 933 (Colo. 2004). The court reasoned that vouchers would violate the local control requirement by funneling local tax money to private schools over which local boards of education would have no control. This decision has limited relevance, however, because only five other states include similar local control provisions in their constitutions.

In contrast, the most prominent state court decision invalidating a voucher program relied on Florida’s constitutional obligation to provide “by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”825 In Bush v. Holmes, 919 So. 2d 392 (Fla. 2006), the court reasoned that a statewide voucher program for students in failing public schools diverted state money into a parallel system of private schools and hence was incompatible with the state’s obligation to provide public schools that are both “uniform” and “high quality.” All state constitutions have education clauses, and many of these use similar language to Florida’s. If Holmes is widely followed, then, voucher programs would be prohibited in most states whether the programs include religious schools or not. Some commentators have criticized the decision’s reasoning and suggest that its influence will be limited. See James E. Ryan, Five Miles Away, a World Apart 236 (2010); see also Hart v. State, 774 S.E.2d 281, 289-290 (N.C. 2015) (upholding voucher program as consistent with state constitutional requirement of a “general and uniform system of free schools”); Meredith v. Pence, 984 N.E.2d at 1223-1225 (declining to follow Bush v. Holmes because of differences between the education clauses in the Florida and Indiana constitutions).

E. FREE EXERCISE OF RELIGION IN THE PUBLIC SCHOOLS

1. Introduction

The First Amendment’s Religion Clauses state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Up to this point, we have primarily been concerned with how the Establishment Clause limits the government’s ability to promote religion. We now turn to the other side of the coin: legal protection of private religious exercise in the schools through the Free Exercise Clause and related federal and state law. As with the Establishment Clause, the Court long ago incorporated the Free Exercise Clause against the states via the Due Process Clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296 (1940).

Because religious expression and conduct can take so many forms, the potential for tensions between religious liberty and the mission of the public schools is vast. Consider these simple examples of how a public school might burden students’ or teachers’ religious belief, expression, or practice:

A student voices her religious opposition to homosexuality in a way the school deems hurtful to other students, and the school wishes to restrict this expression.
A biology teacher refuses to teach evolutionary theory because evolution contradicts his religious beliefs. The school instructs the teacher to follow the curriculum.
Students wish to form a Bible Club that would meet after school hours. The school refuses on the ground that allowing the club to meet would be “promoting religion.”826
A student and her family claim that aspects of the school curriculum (e.g., sex education programs that include discussion of birth control) are religiously objectionable. They ask the school to change the curriculum or, in the alternative, to exempt the student from sex education classes.
Muslim students complain that, unlike Christian students, they have no opportunity to pray silently and unobtrusively during the school day. They point out that even observance of a moment of silence is of little use to them, and they therefore ask the school to accommodate their religious needs by providing space and time for Muslim prayer.

Free exercise issues may also arise where the state seeks to regulate private schools or homeschooling:
A state requires homeschooling parents to submit a portfolio of records and materials so that it can assess whether homeschooled students are being appropriately educated. Some parents refuse to comply because they believe that all education is inherently religious and should be controlled solely by the family.

These examples illustrate some of the most common areas in which education law and practice bear on free exercise interests. While it might be possible to treat all these areas as unified by the common thread of the Free Exercise Clause, we think that most education law free exercise issues are best seen as facets of problems that can take both secular and religious forms. Accordingly, most free exercise issues will be treated in other sections of this casebook. In this section of the chapter, we provide a general introduction to free exercise law by examining Wisconsin v. Yoder, 406 U.S. 205 (1972), the most famous education law free exercise case. In addition, we briefly examine conflicts between religious conduct and the school environment of the sort illustrated by example 5 above. Before turning to these tasks, a brief word about how this section relates to other free exercise topics is in order. Most of these topics are coming attractions, but we begin with a word about one that is not.

The first example above concerns religiously motivated student speech of the sort already covered in Chapter 8. As discussed in the notes following Nuxoll v. Indian Prairie School District in Chapter 8, the student speech criticizing homosexuality in cases like Harper v. Poway and Nuxoll was religiously motivated, and the same could be said of many other student speech cases. Nevertheless, courts decide cases involving religiously motivated student speech using the general student speech framework created by Tinker, Fraser, Hazelwood, and Morse. Student plaintiffs who spoke about religion or for religious reasons may allege violations of both free speech and free exercise rights, but courts pay little attention to the latter, and the free exercise arguments rarely—arguably, never—affect the outcome of the lawsuits. To put the matter in a nutshell: where religious speech rights are concerned, the Free Speech Clause is the dog and the Free Exercise Clause is the tail. There are a number of reasons for this, but here two will suffice. As a historical matter, courts have tended827 to protect speech more aggressively than religious exercise, and litigants have accordingly been keen to characterize religious expression as speech whenever possible. See John E. Taylor, Why Student Religious Speech Is Speech, 110 W. Va. L. Rev. 223 (2007). More deeply, some commentators have argued that religious speech cannot receive greater (or lesser) protection than nonreligious speech as a matter of constitutional principle. To protect religious speech more than secular speech would be a kind of content discrimination. See generally Alan Brownstein, Protecting Religious Liberty: The False Messiahs of Free Speech Doctrine and Formal Neutrality, 18 J.L. & Pol. 119 (2002); Taylor, supra. If this is right, the dominance of the Free Speech Clause in religious speech cases is necessary, not contingent. In any event, this dominance is a fact, and it explains why there is no need for a separate treatment of free exercise issues in student speech cases.

In the second example, a teacher suggests that he has a free exercise right not to teach material that conflicts with his religious beliefs. In a variation on this theme, teachers sometimes argue (unsuccessfully) that they have free speech and/or free exercise rights to promote their faith in the classroom. As with the student speech cases and for the same sorts of reasons, the free exercise arguments in these kinds of cases are generally eclipsed by doctrines regarding curricular control, academic freedom, and public employee speech. Such matters are treated in Chapter 10. The third example also concerns religious speech, this time in the context of equal access to school facilities. This material is discussed in the next section of this chapter.

Unlike the first three examples, examples 4, 5, and 6 present cases where the Free Exercise Clause has been more than the nubby tail on the dog of free speech. Curricular controversies take both religious and secular forms, but some of the best-known cases involve claims that exposure to curricular material interferes with the free exercise rights of children and their families. These cases are discussed in Chapter 10. Burdens on religious conduct in the school environment—illustrated by example 5—are addressed later in this section. Finally, free exercise arguments play a prominent, but not exclusive, role in disputes about the limits of state authority to regulate private schools and homeschooling, which are covered in Chapter 13.

2. Yoder and “Strict Scrutiny” for Free Exercise Claims

To understand the law of free exercise at a basic level, one must first distinguish between two kinds of laws that might be said to “prohibit” the free exercise of religion: laws that regulate religion by their terms and general laws that merely have the effect of burdening religious practice.

Some laws explicitly regulate religious belief and practice. For example, a law might require citizens to attend (or punish citizens for attending) a specific church; a law might forbid the use of wine during religious ceremonies; a law might ban rituals of animal sacrifice as carried out by particular religious groups. The whole point of such laws is to influence religious choices; they “target” or “single out” religion. Laws of this sort are relatively rare in the United States today—both in the school context and elsewhere—but they have been828 common in other times and places. The vast majority of laws that affect religious practice are not specifically or primarily about religion. They regulate other matters within the state’s authority, but incidentally burden some religious groups or individuals. In the education context, for example, school rules might prohibit head coverings (religious or otherwise) during sporting events, or a school’s curriculum might require the teaching of evolutionary science even though some families and children regard such teaching as burdening their religious beliefs. In modern free exercise parlance, laws that incidentally burden religious practice are known as “neutral and generally applicable laws.”

Despite inevitable disagreements about particular cases, today and for most of American history there has been deep and wide consensus that the Free Exercise Clause severely limits the government’s ability to pass laws targeting religious exercise. Today, such laws are subject to strict scrutiny, a standard that the state is rarely able to meet. The contested questions in free exercise law have been about whether and when religious people should be exempted from neutral and generally applicable laws and about whether such exemptions should be granted by courts or only by legislatures. The history of American free exercise law is structured by its answers to these questions. Very broadly, that history can be divided into three periods: the Reynolds era (pre-1963), the Sherbert-Yoder era (1963-1990), and the Smith era (1990-present).

As with the Establishment Clause, there was relatively little case law interpreting the federal Free Exercise Clause prior to its incorporation. The most prominent pre-incorporation case was Reynolds v. United States, 98 U.S. 145 (1879), which arose in what was at the time the Territory of Utah and hence involved only federal law. In Reynolds, a Mormon man raised a free exercise defense to a criminal prosecution for bigamy, arguing that for Mormon men of his station, it was a religious duty to take multiple wives. The Court unequivocally rejected this argument in sweeping terms:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.…Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Id. at 166-167. Reynolds stood at least for the general proposition that the Free Exercise Clause does not authorize courts to grant religious exemptions from general laws, and perhaps for the still stronger proposition that the clause protects beliefs but not actions. When the Supreme Court incorporated the Free Exercise Clause and began deciding cases in the 1940s, some of its language hinted at a more expansive vision of the Free Exercise Clause. Yet where religious plaintiffs prevailed in these early cases, their claims were always founded on free speech rather than free exercise alone. Consequently, the Court’s approach to free exercise remained unclear.

In 1963, the Court adopted a more rights-protective vision of the Free Exercise Clause in Sherbert v. Verner, 374 U.S. 398 (1963), upholding a Seventh-day Adventist’s claim that denying her unemployment benefits829 because she refused to take a job that required work on the Sabbath was a violation of her free exercise rights. The Court confirmed the course it had set in Sherbert by granting a free exercise exemption from a compulsory schooling law in the next, very famous case.

Wisconsin v. Yoder

406 U.S. 205 (1972)

Mr. Chief Justice Burger delivered the opinion of the Court.

Respondents Jonas Yoder and Wallace Miller are members of the Old Order Amish religion, and respondent Adin Yutzy is a member of the Conservative Amish Mennonite Church. Wisconsin’s compulsory school-attendance law required them to cause their children to attend public or private school until reaching age 16 but the respondents declined to send their children, ages 14 and 15, to public school after they complete the eighth grade. The children were not enrolled in any private school, or within any recognized exception to the compulsory-attendance law, and they are conceded to be subject to the Wisconsin statute.

On complaint of the school district administrator for the public schools, respondents were charged, tried, and convicted of violating the compulsory-attendance law in Green County Court and were fined the sum of $5 each. Respondents defended on the ground that the application of the compulsory-attendance law violated their rights under the First and Fourteenth Amendments. The trial testimony showed that respondents believed, in accordance with the tenets of Old Order Amish communities generally, that their children’s attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but, as found by the county court, also endanger their own salvation and that of their children. The State stipulated that respondents’ religious beliefs were sincere.

In support of their position, respondents presented as expert witnesses scholars on religion and education whose testimony is uncontradicted. The history of the Amish sect was given in some detail, beginning with the Swiss Anabaptists of the 16th century who rejected institutionalized churches and sought to return to the early, simple, Christian life de-emphasizing material success, rejecting the competitive spirit, and seeking to insulate themselves from the modern world. As a result of their common heritage, Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.

Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. They object to the high school, and higher education generally, because the values they teach are in marked variance with Amish values and the Amish way of life; they view secondary830 school education as an impermissible exposure of their children to a “worldly” influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through-doing; a life of “goodness,” rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.

Formal high school education beyond the eighth grade is contrary to Amish beliefs, not only because it places Amish children in an environment hostile to Amish beliefs with increasing emphasis on competition in class work and sports and with pressure to conform to the styles, manners, and ways of the peer group, but also because it takes them away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism. In short, high school attendance with teachers who are not of the Amish faith—and may even be hostile to it—interposes a serious barrier to the integration of the Amish child into the Amish religious community.

The Amish do not object to elementary education through the first eight grades as a general proposition because they agree that their children must have basic skills in the ‘three R’s’ in order to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary in the course of daily affairs. They view such a basic education as acceptable because it does not significantly expose their children to worldly values or interfere with their development in the Amish community during the crucial adolescent period. While Amish accept compulsory elementary education generally, wherever possible they have established their own elementary schools in many respects like the small local schools of the past.

On the basis of such considerations, Dr. Hostetler [an expert witness on Amish society] testified that compulsory high school attendance could not only result in great psychological harm to Amish children, because of the conflicts it would produce, but would also, in his opinion, ultimately result in the destruction of the Old Order Amish church community as it exists in the United States today.

[The Wisconsin Supreme Court had reversed the convictions on free exercise grounds.]

There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510831 (1925). Providing public schools ranks at the very apex of the function of a State. Yet even this paramount responsibility was, in Pierce, made to yield to the right of parents to provide an equivalent education in a privately operated system. There the Court held that Oregon’s statute compelling attendance in a public school from age eight to age 16 unreasonably interfered with the interest of parents in directing the rearing of their off-spring, including their education in church-operated schools. As that case suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. Thus, a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce, “prepare (them) for additional obligations.” 268 U.S. at 535.

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.

The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.

We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin’s compulsory school-attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forbears have adhered to for almost three centuries. In evaluating those claims we must be careful to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. Although a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.

832

[T]he record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. That the Old Order Amish daily life and religious practice stem from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, “be not conformed to this world.…” This command is fundamental to the Amish faith.

[Justice Burger reiterated the portrait of the Amish contained in his earlier statement of the facts, concluding:] In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents’ entire mode of life support the claim that enforcement of the State’s requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents’ religious beliefs.

III

[Wisconsin’s] position is that the State’s interest in universal compulsory formal secondary education to age 16 is so great that it is paramount to the undisputed claims of respondents that their mode of preparing their youth for Amish life, after the traditional elementary education, is an essential part of their religious belief and practice.

Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State’s control, but it argues that “actions,” even though religiously grounded, are outside the protection of the First Amendment. But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause.

Nor can this case be disposed of on the grounds that Wisconsin’s requirement for school attendance to age 16 applies uniformly to all citizens of the State and does not, on its face, discriminate against religions or a particular religion, or that it is motivated by legitimate secular concerns. A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. Sherbert v. Verner, 374 U.S. 398 (1963).

We turn, then, to the State’s broader contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way. Where fundamental claims of religious freedom are at stake, however, we cannot accept such a sweeping claim; despite its admitted validity in the generality of cases, we must searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16, and the impediment to those objectives that would flow from recognizing the claimed Amish exemption.

The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to833 participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society. We accept these propositions.

However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve those interests. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.

The State, however, supports its interest in providing an additional one or two years of compulsory high school education to Amish children because of the possibility that some such children will choose to leave the Amish community, and that if this occurs they will be ill-equipped for life. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that upon leaving the Amish community Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because of educational shortcomings.

There is nothing in this record to suggest that the Amish qualities of reliability, self-reliance, and dedication to work would fail to find ready markets in today’s society. Absent some contrary evidence supporting the State’s position, we are unwilling to assume that persons possessing such valuable vocational skills and habits are doomed to become burdens on society should they determine to leave the Amish faith, nor is there any basis in the record to warrant a finding that an additional one or two years of formal school education beyond the eighth grade would serve to eliminate any such problem that might exist.

Insofar as the State’s claim rests on the view that a brief additional period of formal education is imperative to enable the Amish to participate effectively and intelligently in our democratic process, it must fall. The Amish alternative to formal secondary school education has enabled them to function effectively in their day-to-day life under self-imposed limitations on relations with the world, and to survive and prosper in contemporary society as a separate, sharply identifiable and highly self-sufficient community for more than 200 years in this country. In itself this is strong evidence that they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise of religious belief.

Finally, the State, on authority of Prince v. Massachusetts, 321 U.S. 158 (1944), argues that a decision exempting Amish children from the State’s requirement fails to recognize the substantive right of the Amish child to a834 secondary education, and fails to give due regard to the power of the State as parens patriae to extend the benefit of secondary education to children regardless of the wishes of their parents.

The State’s argument proceeds without reliance on any actual conflict between the wishes of parents and children. It appears to rest on the potential that exemption of Amish parents from the requirements of the compulsory-education law might allow some parents to act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world. The same argument could, of course, be made with respect to all church schools short of college.

Indeed it seems clear that if the State is empowered, as parens patriae, to “save” a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will in large measure influence, if not determine, the religious future of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. If not the first, perhaps the most significant statements of the Court in this area are found in Pierce v. Society of Sisters, in which the Court observed:

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 (1923), we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.…The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

268 U.S. at 534-35.

However read, the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a “reasonable relation to some purpose within the competency of the State” is required to sustain the validity of the State’s requirement under the First Amendment. To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation under Prince if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. But in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its claims in terms of the welfare of the child and society as a whole.

For the reasons stated we hold that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age 16. [The Amish] have carried the difficult burden of835 demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education. In light of this convincing showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.

Mr. Justice White, with whom Mr. Justice Brennan and Mr. Justice Stewart join, concurring.

I join the opinion and judgment of the Court because I cannot say that the State’s interest in requiring two more years of compulsory education in the ninth and tenth grades outweighs the importance of the concededly sincere Amish religious practice to the survival of that sect.

This would be a very different case for me if respondents’ claim were that their religion forbade their children from attending any school at any time and from complying in any way with the educational standards set by the State. Since the Amish children are permitted to acquire the basic tools of literacy to survive in modern society by attending grades one through eight and since the deviation from the State’s compulsory-education law is relatively slight, I conclude that respondents’ claim must prevail, largely because “religious freedom—the freedom to believe and to practice strange and, it may be, foreign creeds—has classically been one of the highest values of our society.” Braunfeld v. Brown, 366 U.S. 599, 612 (1961) (Brennan, J., concurring and dissenting).

The importance of the state interest asserted here cannot be denigrated, however. In the present case, the State is…attempting to nurture and develop the human potential of its children, whether Amish or non-Amish: to expand their knowledge, broaden their sensibilities, kindle their imagination, foster a spirit of free inquiry, and increase their human understanding and tolerance. It is possible that most Amish children will wish to continue living the rural life of their parents, in which case their training at home will adequately equip them for their future role. Others, however, may wish to become nuclear physicists, ballet dancers, computer programmers, or historians, and for these occupations, formal training will be necessary. There is evidence in the record that many children desert the Amish faith when they come of age. A State has a legitimate interest not only in seeking to develop the latent talents of its children but also in seeking to prepare them for the life style that they may later choose, or at least to provide them with an option other than the life they have led in the past. In the circumstances of this case, although the question is close, I am unable to say that the State has demonstrated that Amish children who leave school in the eighth grade will be intellectually stultified or unable to acquire new academic skills later. The statutory minimum school attendance age set by the State is, after all, only 16.

836 Mr. Justice Douglas, dissenting in part.

I agree with the Court that the religious scruples of the Amish are opposed to the education of their children beyond the grade schools, yet I disagree with the Court’s conclusion that the matter is within the dispensation of parents alone. The Court’s analysis assumes that the only interests at stake in the case are those of the Amish parents on the one hand, and those of the State on the other.

If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents’ notions of religious duty upon their children. Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child’s rights to permit such an imposition without canvassing his views. As the child has no other effective forum, it is in this litigation that his rights should be considered. And, if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents’ religiously motivated objections.

Religion is an individual experience. It is not necessary, nor even appropriate, for every Amish child to express his views on the subject in a prosecution of a single adult. Crucial, however, are the views of the child whose parent is the subject of the suit. Frieda Yoder has in fact testified that her own religious views are opposed to high-school education. I therefore join the judgment of the Court as to respondent Jonas Yoder. But Frieda Yoder’s views may not be those of Vernon Yutzy or Barbara Miller. I must dissent, therefore, as to respondents Adin Yutzy and Wallace Miller as their motion to dismiss also raised the question of their children’s religious liberty.

On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition.²¹

It is the future of the student, not the future of the parents, that is imperiled by today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student’s judgment, not his parents’, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed.

837

III

I think the emphasis of the Court on the “law and order” record of this Amish group of people is quite irrelevant. A religion is a religion irrespective of what the misdemeanor or felony records of its members might be. I am not at all sure how the Catholics, Episcopalians, the Baptists, Jehovah’s Witnesses, the Unitarians, and my own Presbyterians would make out if subjected to such a test. [T]he Amish, whether with a high or low criminal record,²² certainly qualify by all historic standards as a religion within the meaning of the First Amendment.

[Justice Douglas praised the majority’s rejection of the argument that the Free Exercise Clause protects only religious belief, but criticized its conception of religion.] [T]he Court retreats when in reference to Henry Thoreau it says his “choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.” That is contrary to what we held in United States v. Seeger, 380 U.S. 163 (1965), where we were concerned with the meaning of the words “religious training and belief” in the Selective Service Act, which were the basis of many conscientious objector claims. We said: “Within that phrase would come all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent. The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.” Id. at 176. I adhere to th[is] exalted view[] of “religion” and see no acceptable alternative to [it] now that we have become a Nation of many religions and sects, representing all of the diversities of the human race.

NOTES AND QUESTIONS

1. Yoder’s legacy. Yoder’s immediate result—granting the Amish an exemption from the last two years of compulsory schooling—is of limited relevance today. As discussed in Chapter 13, today homeschooling is allowed in all 50 states. While there is considerable variation, much regulation of homeschooling tends to be permissive, and today the Amish or communities with similar concerns would likely take advantage of the homeschooling option. Nevertheless, Yoder remains a remarkably rich and suggestive case because it raises fundamental questions about religion and law as well as the relative authority of the state, parents, and children in the education process. Some of these questions are explored in the following notes. Forty years later, the case is still838 invoked by nearly every family that raises a free exercise claim in the education law context.

2. Background: Pierce v. Society of Sisters. Yoder frequently makes reference to the Supreme Court’s 1925 decision in Pierce v. Society of Sisters, 268 U.S. 510. The case is fully treated in Chapter 13, but a quick word is in order here. Pierce involved a constitutional challenge to a nativist Oregon voter initiative that essentially required all children to attend public schools. The Court ruled the law unconstitutional on substantive due process grounds and thereby established what is commonly known as the Pierce Compromise: The state may compel schooling for all children, but it cannot monopolize education by requiring all children to attend public schools. Parents have a right to direct their children’s education, which includes the choice of private schooling, though the state has significant authority to regulate these private alternatives. Parents and private schools frequently invoke Pierce to challenge school regulations and curricular choices, but courts generally apply rational basis review to Pierce claims and hence such claims rarely succeed.

3. Yoder as doctrine. Justice Burger’s opinion is not terribly explicit in setting out a formal, doctrinal “test.” Nevertheless, Sherbert and Yoder together have been read to embrace a “strict scrutiny test” with the following prongs:

The religious claimant must demonstrate that her claims are rooted in sincerely held religious beliefs.
The religious claimant must demonstrate that the challenged government regulation substantially burdens the practice of her religious beliefs.

If this showing is made, then
The government must show that the challenged regulation serves a compelling interest.
The government must show that its regulation serves this compelling interest through narrowly tailored means.²³

Looking at Yoder through this doctrinal lens, can you see how the opinion speaks to each of these prongs? Which prong receives the greatest attention from the Court?

Complete discussion of the case law on each element is impossible here, but a few brief remarks are in order along with the observation that in education law cases, the substantial burden and narrowly tailored means prongs are the most likely to be contested and to determine the outcome.

839

In practice, the first element of the Sherbert-Yoder test is seldom disputed. Courts (and government lawyers) rarely challenge the sincerity of a claimant’s religious beliefs, and cases turning on whether a claimant’s belief system is religious are unusual. Litigation more frequently turns on the question of what counts as a substantial burden on religious practice. The case law on this point is difficult to summarize in a nutshell, and you will see significant discussions in some of the cases in Chapter 10. See generally Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933 (1989). For present purposes, it is enough to say that the clearest instances of substantial burden exist when a law forbids believers from fulfilling religious requirements or compels them to violate religious prohibitions. In education law cases, the state can usually convince the court that its asserted educational interests are compelling. The narrow tailoring inquiry can take a variety of forms in other contexts, but in free exercise cases the main question will be the degree to which granting an exemption to this claimant (and, presumably, similarly situated claimants) would undermine the state’s interests.

4. “You’re no Amish.” Justice Burger’s majority opinion is determined to emphasize the uniqueness of the Amish, and lower courts have followed his lead. See, e.g., Duro v. Dist. Att’y, 712 F.2d 96, 98 (4th Cir. 1983) (noting that plaintiffs “are not members of a community which has existed for three centuries and has a long history of being a successful, self-sufficient segment of American society”); Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058, 1067 (6th Cir. 1987) (stating that plaintiff parents were not like those in Yoder because they “want their children to acquire all the skills required to live in modern society”). In his dissent, Justice Douglas takes the majority to task for praising and romanticizing the Amish as a socially beneficial religious group. Given the Court’s emphasis on neutrality as central to the Religion Clauses, does it make sense for the Court to judge the social value of religious groups? See Angela Carmella, Responsible Freedom Under the Religion Clauses: Exemptions, Legal Pluralism, and the Common Good, 110 W. Va. L. Rev. 403 (2007).

5. Privileging religious exercise, defining religion, conceiving religion. Justice Burger’s majority opinion insists that while the Amish have constitutional rights that limit the reach of compulsory schooling, an analogous secular group would not. Some commentators have objected to this privileging of deep religious commitments over analogous secular commitments. See generally Christopher L. Eisgruber & Lawrence Sager, Religious Freedom and the Constitution (2010).

If the government may constitutionally privilege religious objectors over nonreligious objectors, courts will sometimes find it necessary to decide whether particular sets of beliefs and practices count as “religion.” The Supreme Court has never defined the boundaries of “religion” for purposes of the First Amendment, but the leading lower court decision on the question defines religion this way: “First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching. Third, a religion often can be recognized by the presence of certain formal and external signs [i.e., structural characteristics common to paradigmatic religions, such as formal services and rituals, clergy, and holidays].” Africa v. Pennsylvania, 662840 F.2d 1025, 1033 (3d Cir. 1981) (holding that the “revolutionary organization” MOVE was not a religion for First Amendment purposes).

Cases where courts are required to draw a sharp line between religion and “nonreligion” are relatively rare, but in nearly every religious liberty case judges are influenced—often at an unconscious level—by their conceptions of religion. See generally Winnifred Fallers Sullivan, Paying the Words Extra: Religious Discourse in the Supreme Court of the United States (1995). Consider, for example, Justice Douglas’s statement that “[r]eligion is an individual experience.” Wisconsin v. Yoder, 406 U.S. 205, 243 (1972). To some readers, this may seem an unproblematic statement—just as it apparently was to Justice Douglas. Yet contrast Justice Douglas’s view with the very different understanding of religion that Professor Stephen Carter attributes to the Court that decided Pierce v. Society of Sisters:

[T]he Court accepted what we would nowadays describe as a “narrative” theory of religion: that a religious tradition represents a story extended over time, or, more properly, across the generations. A religion, then, is not a static thing, existing at a particular place and time. It is, or rather, it aspires to be at once elusive and evolutionary, existing in more than one time. A religion, in this view, is a story that a people (not a person) tells itself about its historical relationship to God. One reason our contemporary constitutional law tends to miss this point is that it tends to view religion as a matter of individual choice rather than as a community activity; but serious religions revolve around the group, not the individual. And serious religions develop traditions, which in turn help to preserve the narrative. As the late legal scholar Robert Cover pointed out, this narrative aspect is what makes religion dangerous (for the story the religion tells may not be the same one that the dominant forces in society tell), but it is also what makes the religion special (for the story is about God and is believed to be true). The theologian David Tracy refers to this as the “subversive” aspect of religion: for if a religion centrally involves a narrative about the relationship of people to God, and if the narrative is believed, the people who believe it might act in ways that the rest of their society condemns. They might, like the nineteenth century Mormons, engage in polygamous marriages; or they might, like the more committed abolitionists, take active measures to free the slaves. This subversive nature of religion is of course the reason that state power is so often used to try to destroy it; but it is also one of the reasons for its importance to democracy. Religion creates centers of different meanings and thus, potentially, of the radical dissent that provokes dialogue and, through democratic conversation, may lead to social change.

Stephen L. Carter, Parents, Religion, and Schools: Reflections on Pierce, 70 Years Later, 27 Seton Hall L. Rev. 1194, 1204 (1997). To what extent does the Yoder majority share Professor Carter’s view of religion? How, if at all, are their views different?

6. Parent, child, and state. As the prior note suggests, Yoder’s richness stems in part from its engagement with the question of whether religion is best seen as communal or individual. The case is also memorable for raising a closely related set of questions about the relative authority of parents, children, and the state in shaping young people’s life plans. At what point does a child have a right to make choices that may contradict a parent’s wishes? Does Amish education—and, by extension, private religious education more generally—allow religious groups to replicate themselves as distinct centers of meaning within a pluralistic society, or does it deprive young people of the options to choose their own paths? The literature addressing these fundamental questions is vast. See, e.g.,841 Emily Buss, What Does Frieda Yoder Believe?, 2 U. Pa. J. Const. L. 53 (1999); Stephen Gilles, On Educating Children: A Parentalist Manifesto, 63 U. Chi. L. Rev. 937 (1996).

3. Smith and the Contemporary Free Exercise Landscape

The Sherbert-Yoder “strict scrutiny” test for free exercise claims remained the law for nearly two decades after the Yoder decision. In practice, however, the scrutiny employed in free exercise cases by the Supreme Court and the lower federal courts proved to be “strict in theory, but ever so gentle in fact.” Ira C. Lupu, The Trouble with Accommodation, 60 Geo. Wash. L. Rev. 743, 756 (1992). Other than Yoder, Sherbert, and a handful of similar unemployment compensation cases, the Supreme Court ruled against every free exercise challenge to a general law that it considered between 1963 and 1990. Clearly, “strict scrutiny” meant something far different in this context than the “strict in theory, fatal in fact” scrutiny applied in equal protection challenges to invidious racial classifications.

The gap between doctrine and result created growing uncertainty in federal free exercise law until the Supreme Court abandoned strict scrutiny in Employment Division v. Smith, 494 U.S. 872 (1990). The plaintiffs/respondents in the Smith litigation were drug counselors who were fired from their jobs at a private rehabilitation facility because they ingested peyote at a Native American religious ceremony. Because the use of an illegal drug constituted work-related misconduct, Oregon denied the plaintiffs unemployment benefits. By the time the case reached the Supreme Court for a second time, the question addressed by the Court was, essentially, whether the state of Oregon could apply its general criminal prohibition on peyote use to Native American religionists who ingest peyote as a central religious ritual. How would you expect that question to be analyzed under the Sherbert-Yoder framework?

As you can see from the following excerpt, five Justices took a very different approach in an opinion by Justice Scalia.

Employment Division v. Smith

494 U.S. 872 (1990)

[T]he “exercise of religion” often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a State would be “prohibiting the free exercise [of religion]” if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of “statutes that are to be used for worship purposes,” or to prohibit bowing down before a golden calf.

842

Respondents in the present case, however, seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as “prohibiting the free exercise [of religion]” by those citizens who believe support of organized government to be sinful, than it is to regard the same tax as “abridging the freedom…of the press” of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

Our decisions reveal that the latter reading is the correct one. We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-95 (1940): “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.…Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Id. at 166-67.

A 5-4 majority of the Court in Smith replaced the strict scrutiny framework with the following rule: The Free Exercise Clause is not violated when a neutral and generally applicable law burdens religious practice. This rule leads to predictable results: The government always wins, no matter how severe the burden on religious practice. No Yoder-style balancing is necessary. Justice O’Connor provided a sixth vote for the result because she would have denied the free843 exercise claim under Sherbert-Yoder, but she joined with the dissenters in criticizing the majority’s decision to abandon strict scrutiny for free exercise claims.

Smith fundamentally reshaped federal free exercise law, and debates about its wisdom and effects have raged ever since. For an early but still highly instructive exchange, compare Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990) (criticizing Smith), with William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308 (1991) (defending the Smith result while accepting some criticisms of the Smith opinion). To understand the new landscape, however, one must first understand what happened to the old one. Specifically, how did Smith affect Yoder?

a. Smith, Yoder, and “Hybrid Rights”

Under Smith, the first step in evaluating a free exercise claim is to ask whether the challenged law is “neutral and generally applicable.” Wisconsin’s compulsory education law certainly appears to be neutral and generally applicable, thus it seems that Smith should have overruled Yoder. It didn’t. Instead, the Court reinterpreted Yoder (and the Sherbert line of cases, a discussion of which follows later in this section) to render them consistent with Smith. Here is how the Court explained Yoder’s compatibility with the new Smith rule:

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S. 296, 304-307 (1940) (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).…The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.

Smith, 494 U.S. at 891-892. According to this paragraph, then, the Supreme Court properly applied strict scrutiny and the Amish properly prevailed in Yoder because the case involved a “hybrid” of free exercise and the right of parents to direct their children’s education (a/k/a the Pierce right). Stand-alone free exercise challenges to neutral and generally applicable laws are governed by Smith, but hybrid challenges still get “strict” scrutiny of the sort deployed in Yoder. Are you persuaded by the Court’s reading of Yoder? Can you find language in Yoder that supports Justice Scalia’s reading? That contradicts it?

A moment’s reflection will make clear that in the context of education law, the scope of the “hybrid rights exception” to Smith is all important. On the one hand, the vast majority of policies that govern schooling will be “neutral and generally applicable.” Most school rules are “religion-blind” in that they do not844 use religious classifications or seek to suppress religious practices. On the other hand, every education free exercise claim can be characterized as a hybrid rights claim by saying that the challenged law also implicates the Pierce right of a parent to direct her child’s education. Can it be that because of the hybrid rights exception, Smith has no effect on education law at all? That might be a welcome conclusion to some, but it seems doubtful that this is what the majority in Smith intended. What, then, should one make of the hybrid rights exception?

Thus far, no court has read the hybrid rights exception to swallow the Smith rule. Three federal circuits have announced that they can make no sense of the hybrid rights exception and will treat that portion of Smith as dicta. Combs v. Homer-Center Sch. Dist., 540 F.3d 231, 247 (3d Cir. 2008); Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003); Kissinger v. Bd. of Trs., 5 F.3d 177 (6th Cir. 1993); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 566-567 (1993) (Souter, J., concurring) (describing the hybrid rights exception as “untenable”). Two other circuits recognize hybrid rights only when the free exercise claim is joined with an independently viable claim arising under another constitutional provision. EEOC v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C. Cir. 1996); Brown v. Hot, Sexy & Safer Prods., 68 F.3d 525, 539 (1st Cir. 1995). This approach makes the free exercise claim superfluous and thus in practice amounts to rejection of the hybrid rights idea. The Ninth and Tenth Circuits have taken the hybrid rights exception more seriously by applying strict scrutiny when a free exercise claim is combined with a “colorable” claim involving another constitutional provision. San Jose Christian Coll. v. Morgan Hill, 360 F.3d 1024, 1032 (9th Cir. 2004); Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694, 700 (10th Cir. 1998). A claim is “colorable” if it has “a fair probability or a likelihood, but not a certitude, of success on the merits.” Morgan Hill, 360 F.3d at 1032. Given this fairly skeptical reception to hybrid rights in the circuits, it is no surprise that there are relatively few reported cases where courts have accepted a hybrid rights argument. Even in these cases, it has been argued that the hybrid rights argument was rarely (or never) essential to the outcome. See John E. Taylor, Why Student Religious Speech Is Speech, 110 W. Va. L. Rev. 223, 248-263 (2007).

What, then, remains of Yoder after Smith? First, Yoder is still good law, and this means its strict scrutiny analysis should still apply in any case directly governed by Yoder. Accordingly, religious claimants in education law cases frequently argue that their cases are essentially indistinguishable from Yoder, though courts have not been particularly receptive to these arguments. See, e.g., Parker v. Hurley, 514 F.3d 87, 100 (1st Cir. 2008) (rejecting plaintiff’s Yoder argument and describing Yoder’s holding as “essentially sui generis”). Second, where courts have shown any openness to hybrid rights arguments, Yoder will certainly be invoked as the premier example of a successful hybrid rights claim. These points suggest that Yoder’s relevance is now quite limited, yet they understate the degree to which the Sherbert-Yoder test lives on in the post-Smith world. We now turn to that topic.

After Smith, Free Exercise Clause doctrine includes two basic approaches: the Smith rule and the Yoder strict scrutiny test. Any plaintiff who seeks a religious exemption must find a way to get around Smith, and there are basically845 two ways to do so. One is to invoke statutory or state constitutional law more protective than Smith. The other is to take advantage of limitations on the Smith rule present within federal constitutional law. (Hybrid rights arguments are one part of this second strategy.) We might describe these as external and internal limitations on the Smith rule; some of the principal limitations are listed below.

b. Trumping Smith with Other Law: External Limitations on Smith

i. The Religious Freedom Restoration Act of 1993

Smith provoked a storm of opposition, and a coalition of strange bedfellows from left and right lobbied Congress for legislation that would undo the damage to religious liberty allegedly wrought by the decision. This resulted in the 1993 passage of the Religious Freedom Restoration Act (RFRA). In RFRA, Congress sought to reinstate the Sherbert-Yoder test²⁴ (i.e., to legislatively overrule Smith) for all free exercise challenges to federal and state law. RFRA rendered Smith a dead letter, assuming Congress had the power to pass it.

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that RFRA exceeded Congress’s power under §5 of the Fourteenth Amendment. The gist of the Court’s reasoning was that the power to “enforce” the Free Exercise Clause against the states is (for the most part) the power to enforce the Supreme Court’s interpretation of the Free Exercise Clause against the states. In RFRA, Congress was not just “enforcing” the Free Exercise Clause; instead, it was attempting to override what the Court had said the Free Exercise Clause means. The Court made clear that the power to “enforce” does not include the power to define the substantive content of the law because (ever since Marbury v. Madison, 5 U.S. 137 (1803)) it has been the province of the judiciary to say what the law is. While Flores clearly held that RFRA is unconstitutional as applied to the states, it is a separate question whether RFRA is still constitutional as applied to federal laws. The question is left open because Congress does not846 need to use its §5 power to police federal laws burdening the free exercise of religion. RFRA is only unconstitutional as applied to the federal government if it violates the constitutional principle of the separation of powers by treading on the judiciary’s power to say what the law is. The circuit courts to address the issue so far have all held that RFRA remains good law as applied to actions of the federal government, and the Supreme Court signaled its agreement that RFRA still applies to federal laws in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2761 (2014). It appears, then, that RFRA’s compelling interest standard should apply when a federal law is challenged on free exercise grounds, even if the federal law is neutral and generally applicable under Smith.

ii. State “Mini-RFRAs” and Constitutional Provisions

The federal Constitution sets a floor, not a ceiling, for the protection of civil liberties. States are free to provide greater protection for religious exercise than Smith via religious liberty statutes (“mini-RFRAs”) or broad interpretations of the free exercise provisions in their own constitutions. At this writing, roughly half the states have limited Smith in one of these ways. This means that if a free exercise challenge is brought to a neutral and generally applicable state law, Smith may become irrelevant because the parties and the court will focus on the more protective state provisions and ignore the federal constitutional issues.

The combined force of these “external” limits on Smith is significant. Where one of them applies, courts continue to look to the pre-Smith case law (including Yoder) for guidance in interpreting the concepts of substantial burden, compelling interest, and “least restrictive” or “narrowly tailored” means. Further, Hobby Lobby suggests that the Supreme Court may now be interpreting RFRA to be more protective of free exercise interests than was the pre-Smith case law.²⁵ If this apparent trend continues, state courts may follow suit in interpreting their own mini-RFRAs, and as a result the “external” limitations on Smith will assume even greater importance.

c. Internal Limitations on Smith

If no trumping law is available, religious claimants and their opponents should be aware of a number of limitations on the scope of the Smith rule that exist within federal constitutional law.

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i. Smith Applies Only to Neutral and Generally Applicable Laws, Not to Laws That “Target” Religion

Three years after Smith, the Court reaffirmed the core free exercise prohibition on religious persecution in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). In Lukumi, the Court unanimously struck down a set of ordinances that had been tailored to prevent adherents of the Santeria religion from performing rituals of animal sacrifice. Lukumi made clear that laws singling out religion for negative treatment (either by using religious classifications or by design) are subject to strict scrutiny that “really means what it says.” Id. at 546. Such laws will nearly always be unconstitutional. See also Axson-Flynn v. Johnson, 356 F.3d 1277, 1294 (10th Cir. 2004) (remanding for consideration of whether policy requiring a Mormon acting student to adhere to scripts of plays the student found religiously objectionable was a pretext for anti-Mormon discrimination).

One important education law case, however, fails to fit this neat division between Smith and Lukumi. Locke v. Davey, 540 U.S. 712 (2004), discussed in the notes after Zelman, was a free exercise claim brought by a college student who had been excluded from a scholarship program because of his decision to study devotional theology. The state of Washington included this restriction to give force to the state constitution’s vision of separation of church and state. The plaintiff argued that since the scholarship program discriminated against religion on its face, Lukumi was the governing standard and its “fatal in fact” strict scrutiny should invalidate the restriction. In a 7-2 decision, the Court ruled that even though the scholarship program was not neutral and generally applicable, it should not be governed by Lukumi either: “In the present case, the State’s disfavor of religion (if it can be called that) is of a far milder kind.…The State has merely chosen not to fund a distinct category of instruction.” Id. at 720-721. Summing up, the Court stated that “[t]he State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here.” Id. at 724. Locke appears to mean that facial exclusions of religion pursuant to separationist values should not be equated to religious persecution. Do you agree? Whether or not the basic impulse behind Locke is correct, it fails to articulate a clear standard of review for assessing other claims that might fall into the gap between Smith and Lukumi. The Court’s grant of certiorari in Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d 779 (8th Cir. 2015) (discussed supra at p. 821), may help to clarify the scope of Locke.

ii. Smith Does Not Apply to Hybrid Rights Claims

As discussed above, claims involving certain hybrids of free exercise and other constitutional rights may still be governed by the Sherbert-Yoder framework.

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iii. Smith Does Not Apply Where the Government Has Created a “System of Individualized Exemptions”

As with Yoder, the Smith Court declined to overrule Sherbert and its progeny, thus creating a need to explain why these cases were still good law. The Court observed that Sherbert “was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct” and recast the case as standing for the proposition that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Smith, 494 U.S. at 884. Professor Duncan writes:

For example, suppose a state law school requires all students to enroll as full-time students during their first year of study. However, assume also that over the years the law faculty has granted a small number of exemptions from the requirement for students who request part-time status to accommodate various personal or family hardships. Perhaps the faculty has granted part-time status to first year students who are single parents, or who are caring for aged parents, or whose petition for a waiver is accompanied by a supporting letter from a member of the state legislature. Must the law college grant a religious exemption to a student who wishes to enroll on a part-time basis to accommodate his volunteer work at a shelter and evangelical outreach for the homeless operated as a ministry by the student’s church? Under Smith and Sherbert, the answer is yes; since the law school has in place “a system of individual exemptions,” it must either grant the religious exemption or be prepared to pass strict scrutiny.

Richard A. Duncan, Free Exercise Is Dead, Long Live Free Exercise: Smith, Lukumi, and the General Applicability Requirement, 3 U. Pa. J. Const. L. 850, 861-862 (2001); see also Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) (case on which Professor Duncan’s example is based); but see Eugene Volokh, A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465, 1539-1542 (1999) (criticizing such broad readings of Smith’s exceptions as implausible).

iv. The “Ministerial Exception” Survives Smith

Antidiscrimination laws like Title VII would seem to be neutral and generally applicable, yet there is a long line of pre-Smith case law holding that religious organizations may select their leaders without regard to antidiscrimination laws. The exception precludes not only claims of religious discrimination, but also discrimination claims based on race, sex, and other protected categories. (This is why, as one might guess, a woman who wants to be ordained as a Catholic priest cannot achieve her objective by filing a lawsuit.) See generally Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. Rev. 1 (2011). Since 1990, courts have consistently held that the ministerial exception survives Smith, though some commentators have urged its rejection. See, e.g., Caroline Mala Corbin, Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law, 75 Fordham L. Rev. 1965 (2007). The Supreme Court recently settled this debate by recognizing the constitutional status of the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v.849 EEOC, 132 S. Ct. 694 (2012). The Court declined to adopt a “rigid formula” for deciding which church personnel should count as “ministers” for purposes of the exception. Instead, it simply concluded that the plaintiff, a “called” teacher in a Lutheran school, was a “minister” in light of circumstances including her title and job duties.

4. Accommodating Religious Practice in the Public Schools

The preceding parts of Section E have covered the history and doctrinal structure of free exercise law. The three public school contexts where religious liberty issues most often arise are primarily covered elsewhere: religious speech is covered in Chapter 8 and in the upcoming Section F of this chapter, challenges to the curriculum are covered in Chapter 10, and challenges to compulsory schooling law and the regulation of private schooling and homeschooling are examined further in Chapter 13. In this section, we briefly address several other contexts where the religious liberty interests of students and their families may clash with the needs of public education.

a. Mandatory Vaccinations

All states require that students be vaccinated against a variety of diseases (e.g., diphtheria, polio, rubella, tetanus) before entering school, but many families have religious objections to some or all vaccinations. For example, parents may believe that all vaccinations are sinful in showing lack of trust in God’s ability to care for their children’s health. Even prior to Smith, courts had long recognized the compelling public health interests behind vaccination requirements. See Jacobson v. Massachusetts, 197 U.S. 11 (1905). After Smith, it is even clearer that the federal Free Exercise Clause does not require states to grant religious exemptions from vaccination requirements. See Caviezel v. Great Neck Pub. Schs., 739 F. Supp. 2d 273, 285 (E.D.N.Y. 2010).

Even where the Free Exercise Clause does not require religious exemptions, the state may choose to accommodate the needs of religious objectors with a statutory exemption. In fact, all but two states (Mississippi and West Virginia) include some type of religious exemption in their statutory vaccination requirements. Such discretionary accommodation of the religious needs of students and their families is very common in the modern regulatory state. See James E. Ryan, Note, Smith and the Religious Freedom Restoration Act: An Iconoclastic Assessment, 78 Va. L. Rev. 1407, 1446 (1992) (stating that more than 2,000 statutes contain religious exemptions). When governments choose to grant discretionary religious exemptions or to accommodate the needs of religious believers in other ways, the legal question is whether these discretionary efforts to further religious liberty move beyond neutrality and advance religion in violation of the Establishment Clause. The Supreme Court’s case law on the limits of discretionary accommodation is complex, but it is safe to say that the current Court recognizes fairly broad government discretion to provide greater accommodation of850 religious needs than the Free Exercise Clause requires. In its most recent decision in this area, the Court has said that an accommodation is permitted by the Establishment Clause if it “alleviates exceptional government-created burdens on private religious exercise,” “take[s] adequate account of the burdens a requested accommodation may impose on nonbeneficiaries,” and “will be administered neutrally among different faiths.” Cutter v. Wilkinson, 544 U.S. 709, 720-724 (2005). Religious exemptions to vaccination requirements have generally been upheld, but courts have struck down accommodations that violate the requirement of religious neutrality by granting exemptions only to members of “a recognized church or religious denomination.” See, e.g., McCarthy v. Boozman, 212 F. Supp. 2d 945 (W.D. Ark. 2002).

b. Absence from School for Religious Reasons

Virtually all schools today excuse students’ temporary absences from school for religious reasons. Whether or not such accommodation is required by the Free Exercise Clause under Smith, it is certainly permitted and seems only fair given that the school calendar is already designed to accommodate the holidays of most Christian denominations. One federal court has held that a school policy of granting only two excused absences for religious holidays and giving students failing grades on tests and assignments for additional days missed violated the Free Exercise Clause under the Sherbert-Yoder standard. Church of God v. Amarillo Indep. Sch. Dist., 511 F. Supp. 613 (N.D. Tex. 1981).

c. Dress and Grooming Codes

As related in Chapter 8, students have often challenged dress and grooming codes (including school uniform policies) on free speech grounds, but with little success. The story of free exercise challenges to dress and grooming codes is more mixed. Such codes in the United States are typically “neutral and generally applicable laws” and hence would raise no free exercise concerns under Smith. (In contrast, consider the controversy that arose from the 2004 passage of a French law barring public schoolchildren from wearing clothing or insignia that “conspicuously manifest a religious affiliation.” See generally T. Jeremy Gunn, Religious Freedom and Laïcité: A Comparison of the United States and France, 2004 BYU L. Rev. 419. How would such a rule fare under U.S. law?) Nevertheless, a few courts have mandated free exercise exemptions to dress and grooming codes by recognizing hybrid rights claims involving speech or Pierce, thereby triggering strict scrutiny. See, e.g., Hicks ex rel. Hicks v. Halifax Cnty. Bd. of Educ., 93 F. Supp. 2d 649 (E.D.N.C. 1999); Chalifoux v. New Caney Indep. Sch. Dist., 976 F. Supp. 659 (S.D. Tex. 1997). But see John E. Taylor, Why Student Religious Speech Is Speech, 110 W. Va. L. Rev. 223, 251-254 (2007) (criticizing the reasoning of these cases). Religious objectors to dress and grooming policies may also find success under state law. See A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010) (upholding Native American’s right to851 exemption from hair length requirement under Texas mini-RFRA). As with vaccinations and absences, states have discretion to grant religious exemptions to dress and grooming codes beyond what the Free Exercise Clause or other law might require. See Isaacs ex. rel. Isaacs v. Bd. of Educ. of Howard Cnty., Md., 40 F. Supp. 2d 335 (D. Md. 1999) (upholding religious exemption to “no hats in class” policy against challenge by student who had been denied permission to wear multicolored head wraps in celebration of her cultural heritage as an African American and a Jamaican).

d. Religious Conduct at School

A wide range of religiously motivated conduct might violate school rules or be made more difficult to carry out in the school environment. For example, Sikhs must at all times carry five symbols of their faith including the kirpan, a ceremonial knife 6 to 7 inches in length with a blade of about 2.5 inches. All schools today will have rules against carrying weapons at school, and nearly all such rules will ban any knife as large as a kirpan. In a controversial case decided under the federal RFRA prior to City of Boerne v. Flores, the Ninth Circuit required a California school district to accommodate three Sikh elementary school children by allowing them to wear kirpans sewn into sheaths on cloth straps worn underneath the children’s clothing. Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995). How would you analyze this case under the strict scrutiny standards of the federal RFRA?

Consider the case of Muslim prayer. Public school officials may not lead students in prayers, but of course, students may pray on their own at school in a nondisruptive manner. Moments of silence may facilitate voluntary prayer for many students. Muslim prayer obligations, however, cannot be satisfied within the context of a moment of silence at the beginning of the school day. Salah must be performed at five specific times during the day, and it requires ritual purification before prayer and a series of actions and postures during prayer. While schools do not and cannot have rules that forbid Muslims from carrying out their prayer obligations, Muslims will find it difficult to carry out their religious obligations without some accommodation from the school. While it is unlikely that the federal Free Exercise Clause requires the accommodation of Muslim prayer, a school’s voluntary accommodation by providing a space where students could pray at the appropriate times should be constitutional (though there is as yet no case law on the subject).

PROBLEM

The city of Dearborn, Michigan, has perhaps the largest per capita Muslim population in the United States. Roughly 35 percent of its students are Muslim, and the community includes more than a dozen mosques. As part of the purification preceding prayer, Muslims must perform wudu, which involves the ritual cleansing of various parts of the body with water. Normally Muslims wash each foot up to the ankle three times.

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The University of Michigan–Dearborn, like the rest of the town, has a large population of Muslim students. The university has found that its students are often performing wudu in bathroom sinks on the campus and that this activity is causing some sinks to separate from the walls. Accordingly, the University is considering spending $25,000 to install two footbaths on campus. You are the university’s legal counsel, and the university president has asked you to address three questions: (1) Is the university legally required to build the footbaths? (2) If not, is the university legally permitted to build the footbaths? (3) If the answer to either of the first two questions is “yes,” what advice do you have about how to handle this?

F. EQUAL ACCESS: THE PUBLIC SCHOOL AS PUBLIC FORUM

The “equal access” cases lie at the intersection of the Free Speech Clause and the Establishment Clause. As a general matter, free speech principles severely limit the government’s authority to treat speakers differently because of the content of their speech. At the same time, much religious activity is speech, and the Establishment Clause may suggest that the government must treat religious speech differently. If the government opens its property as a forum for a broad range of private speech, does excluding religious speakers violate the Free Speech Clause? Does including religious speakers subsidize religious activity in violation of the Establishment Clause? To a large extent, these questions recapitulate the conflict between the no-aid and nondiscrimination principles in the funding cases covered in Section D. As you will see, the Court has sided with the nondiscrimination principle in the equal access cases from the beginning. Indeed, the equal access cases are critical to the rise of the nondiscrimination principle in the funding cases as well. See Section D.3.a supra.

1. Public Forum Doctrine, Widmar v. Vincent, and the Thin End of the Wedge

In most discussions of constitutional rights, the focus is on how the Constitution limits governmental authority to regulate private activity. We think of the government in its role as sovereign. In the modern world, however, the government acts in other roles including educator and property owner. The branch of speech law known as public forum doctrine asks how the government may regulate speech that takes place on its own property. The basic principles of public forum doctrine were introduced in Chapter 8’s treatment of Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), but we repeat them here as necessary background for the cases in this section.

One possible approach would hold that, like private property owners, the government has a free hand to determine what is said on its property. The853 Supreme Court once embraced this view, see Davis v. Massachusetts, 167 U.S. 43 (1897), but by the late 1930s had recognized the existence of “traditional public fora” like parks and streets that have always been important venues for assembly and speech, see Hague v. CIO, 307 U.S. 496 (1939). In traditional public fora, the government’s authority to regulate speech qua property owner is essentially the same as its ability to regulate speech as sovereign.

Unlike traditional public fora, most government property is not open for private speech by its very nature. The soapbox orator has no right to hold forth in the Pentagon or, less dramatically, in the local public school. In such cases, the government may decide whether to open its property to private speakers. Public schools do not have to open their property to student groups or community groups for after-school use, and they do not have to allow any outside speakers to address students or distribute materials to them. Yet schools almost invariably do these things to some extent, and when they do they are governed by the principles of public forum doctrine.

By the early 1980s, the Court had settled on an approach in which public fora are grouped into one of three categories: traditional public fora, designated public fora (a/k/a “designated open fora”), and nonpublic fora. The canonical exposition is from Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983):

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U.S. 496, 515 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

A second category consists of public property which the state has opened for use by the public as a place for expressive activity. The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.

Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the “First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” In addition to time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view. As we have stated on several occasions, “the State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”

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Perry, 460 U.S. at 45-47. Since Perry, the Court has also spoken frequently of the “limited public forum.” Whereas “designated open forum” suggests that the state has opened its property for indiscriminate public use, the state may open its property only to some speakers or only for speech on certain topics. Public universities, for example, often open their property for meetings of student groups but not for general public use. In such cases, the Court usually describes the government as having created a limited public forum.

The Court’s first “equal access” case was Widmar v. Vincent, 454 U.S. 263 (1981). Like most universities at the time, the University of Missouri at Kansas City (UMKC) allowed registered student groups to meet in university buildings but prohibited the use of school buildings “for purposes of religious worship or religious teaching” because of Establishment Clause concerns. A registered student group called Cornerstone used UMKC buildings from 1973 to 1977 for meetings that included prayer, hymn singing, and religious discussions. When UMKC told Cornerstone in 1977 that it could no longer meet on campus, the group sued on the ground that its free speech rights had been violated. The Supreme Court characterized UMKC as having “created a forum generally open for use by student groups” and concluded that excluding Cornerstone from that forum because of the religious content of its speech could only be justified under strict scrutiny.

UMKC argued, of course, that excluding Cornerstone was necessary to satisfy the compelling interest of complying with the Establishment Clause. The Court disagreed:

In this context we are unpersuaded that the primary effect of the public forum, open to all forms of discourse, would be to advance religion.…It is possible—perhaps even foreseeable—that religious groups will benefit from access to University facilities. But this Court has explained that a religious organization’s enjoyment of merely “incidental” benefits does not violate the prohibition against the “primary advancement” of religion. We are satisfied that any religious benefits of an open forum at UMKC would be “incidental” within the meaning of our cases. Two factors are especially relevant.

First, an open forum in a public university does not confer any imprimatur of state approval on religious sects or practices. As the Court of Appeals quite aptly stated, such a policy “would no more commit the University…to religious goals” than it is “now committed to the goals of the Students for a Democratic Society, the Young Socialist Alliance,” or any other group eligible to use its facilities. 635 F.2d 1310, 1317 (1980).²⁶

Second, the forum is available to a broad class of nonreligious as well as religious speakers; there are over 100 recognized student groups at UMKC. The provision of benefits to so broad a spectrum of groups is an important index of secular effect. At least in the absence of empirical evidence that religious groups will dominate UMKC’s open forum, we agree with the Court of Appeals that the advancement of religion would not be the forum’s “primary effect.”

Widmar, 454 U.S. at 273-275.

855

2. Expanding Widmar: The Equal Access Act and Mergens

Widmar established that if universities open their facilities to student groups generally, the Free Speech Clause requires them to grant access to student religious groups on equal terms. The next question was whether the same principles could be extended to public secondary schools. Are there any reasons for resisting the extension?

Rather than waiting for the Supreme Court to settle the question, Congress passed the Equal Access Act in 1984 to extend the rule of Widmar to public secondary schools. The Supreme Court addressed the meaning of the act and its constitutionality in the following case.

Board of Education of Westside Community Schools v. Mergens

496 U.S. 226 (1990)

Justice O’Connor delivered the opinion of the Court, except as to Part III.

This case requires us to decide whether the Equal Access Act, 20 U.S.C. §§4071-4074, prohibits Westside High School from denying a student religious group permission to meet on school premises during noninstructional time, and if so, whether the Act, so construed, violates the Establishment Clause of the First Amendment.

Students at Westside High School are permitted to join various student groups and clubs, all of which meet after school hours on school premises. The students may choose from approximately 30 recognized groups on a voluntary basis.

School Board Policy 5610 concerning “Student Clubs and Organizations” recognizes these student clubs as a “vital part of the total education program as a means of developing citizenship, wholesome attitudes, good human relations, knowledge and skills.” Board Policy 5610 also provides that each club shall have faculty sponsorship and that “clubs and organizations shall not be sponsored by any political or religious organization, or by any organization which denies membership on the basis of race, color, creed, sex or political belief.”

In January 1985, respondent Bridget Mergens met with Westside’s Principal, Dr. Findley, and requested permission to form a Christian club at the school. The proposed club would have the same privileges and meet on the same terms and conditions as other Westside student groups, except that the proposed club would not have a faculty sponsor. According to the students’ testimony at trial, the club’s purpose would have been, among other things, to permit the students to read and discuss the Bible, to have fellowship, and to pray together. Membership would have been voluntary and open to all students regardless of religious affiliation.

856

[The school denied Mergens’ request, explaining that because “school policy required all student clubs to have a faculty sponsor, which the proposed religious club would not or could not have, and that a religious club at the school would violate the Establishment Clause.” Mergens filed suit alleging violation of the Equal Access Act. The school board prevailed in district court, but the Eighth Circuit reversed and entered judgment for Mergens. The Supreme Court granted certiorari.]

In 1984, Congress extended the reasoning of Widmar to public secondary schools. Under the Equal Access Act, a public secondary school with a “limited open forum” is prohibited from discriminating against students who wish to conduct a meeting within that forum on the basis of the “religious, political, philosophical, or other content of the speech at such meetings.” 20 U.S.C. §§4071(a) and (b). Specifically, the Act provides: “It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” §4071(a).

A “limited open forum” exists whenever a public secondary school “grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.” §4071(b). “Noninstructional time” is defined to mean “time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.”§4072(4). Thus, even if a public secondary school allows only one “noncurriculum related student group” to meet, the Act’s obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time.

The parties agree that Westside High School receives federal financial assistance and is a public secondary school within the meaning of the Act. The Act’s obligation to grant equal access to student groups is therefore triggered if Westside maintains a “limited open forum”—i.e., if it permits one or more “noncurriculum related student groups” to meet on campus before or after classes.

Unfortunately, the Act does not define the crucial phrase “noncurriculum related student group.” Our immediate task is therefore one of statutory interpretation. We begin, of course, with the language of the statute. The common meaning of the term “curriculum” is “the whole body of courses offered by an educational institution or one of its branches.” Webster’s Third New International Dictionary 557 (1976). Any sensible interpretation of “noncurriculum related student group” must therefore be anchored in the notion that such student857 groups are those that are not related to the body of courses offered by the school. The difficult question is the degree of “unrelatedness to the curriculum” required for a group to be considered “noncurriculum related.”

The Act’s definition of the sort of “meeting[s]” that must be accommodated under the statute, §4071(a), sheds some light on this question. “The term ‘meeting’ includes those activities of student groups which are…not directly related to the school curriculum.” §4072(3) (emphasis added). Congress’ use of the phrase “directly related” implies that student groups directly related to the subject matter of courses offered by the school do not fall within the “noncurriculum related” category and would therefore be considered “curriculum related.”

Although the phrase “noncurriculum related student group”…remains sufficiently ambiguous that we might normally resort to legislative history, we find the legislative history on this issue less than helpful. We think it significant, however, that the Act, which was passed by wide, bipartisan majorities in both the House and the Senate, reflects at least some consensus on a broad legislative purpose. The Committee Reports indicate that the Act was intended to address perceived widespread discrimination against religious speech in public schools and, as the language of the Act indicates, its sponsors contemplated that the Act would do more than merely validate the status quo. A broad reading of the Act would be consistent with the views of those who sought to end discrimination by allowing students to meet and discuss religion before and after classes.

In light of this legislative purpose, we think that the term “noncurriculum related student group” is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school’s curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a commonsense interpretation of the Act that is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.

For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. A school’s student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school. If participation in a school’s band or orchestra were required for the band or orchestra classes, or resulted in academic credit, then those groups would also directly relate to the curriculum. The existence of such groups at a school would not trigger the Act’s obligations.

On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a community service club fell within our description of groups that directly relate to the curriculum, such groups would be “noncurriculum related student groups” for purposes of the Act. The existence of such groups would create a “limited open forum” under the Act and would prohibit the school from denying equal access to any other student group on the858 basis of the content of that group’s speech. Whether a specific student group is a “noncurriculum related student group” will therefore depend on a particular school’s curriculum, but such determinations would be subject to factual findings well within the competence of trial courts to make.

The parties in this case focus their dispute on 10 of Westside’s approximately 30 voluntary student clubs: Interact (a service club related to Rotary International); Chess Club; Subsurfers (a club for students interested in scuba diving); National Honor Society; Photography Club; Welcome to Westside Club (a club to introduce new students to the school); Future Business Leaders of America; Zonta Club (the female counterpart to Interact); Student Advisory Board (student government); and Student Forum (student government). Petitioners contend that all of these student activities are curriculum related because they further the goals of particular aspects of the school’s curriculum. The Welcome to Westside Club, for example, helps “further the School’s overall goal of developing effective citizens by requiring student members to contribute to their fellow students.” Subsurfers furthers “one of the essential goals of the Physical Education Department—enabling students to develop lifelong recreational interests.” The Chess Club “supplement[s] math and science courses because it enhances students’ ability to engage in critical thought processes.”

To the extent that petitioners contend that “curriculum related” means anything remotely related to abstract educational goals, however, we reject that argument. To define “curriculum related” in a way that results in almost no schools having limited open fora, or in a way that permits schools to evade the Act by strategically describing existing student groups, would render the Act merely hortatory.

Rather, we think it clear that Westside’s existing student groups include one or more “noncurriculum related student groups.” Although Westside’s physical education classes apparently include swimming, counsel stated at oral argument that scuba diving is not taught in any regularly offered course at the school. Based on Westside’s own description of the group, Subsurfers does not directly relate to the curriculum as a whole in the same way that a student government or similar group might. Moreover, participation in Subsurfers is not required by any course at the school and does not result in extra academic credit. Thus, Subsurfers is a “noncurriculum related student group” for purposes of the Act. Similarly, although math teachers at Westside have encouraged their students to play chess, chess is not taught in any regularly offered course at the school, and participation in the Chess Club is not required for any class and does not result in extra credit for any class. The Chess Club is therefore another “noncurriculum related student group” at Westside.

We therefore conclude that Westside permits “one or more noncurriculum related student groups to meet on school premises during noninstructional time,” §4071(b). Because Westside maintains a “limited open forum” under the Act, it is prohibited from discriminating, based on the content of the859 students’ speech, against students who wish to meet on school premises during noninstructional time.

The remaining statutory question is whether petitioners’ denial of respondents’ request to form a religious group constitutes a denial of “equal access” to the school’s limited open forum. Although the school apparently permits respondents to meet informally after school, respondents seek equal access in the form of official recognition by the school. Official recognition allows student clubs to be part of the student activities program and carries with it access to the school newspaper, bulletin boards, the public address system, and the annual Club Fair. Given that the Act explicitly prohibits denial of “equal access…to…any students who wish to conduct a meeting within [the school’s] limited open forum” on the basis of the religious content of the speech at such meetings, §4071(a), we hold that Westside’s denial of respondents’ request to form a Christian club denies them “equal access” under the Act.

Because we rest our conclusion on statutory grounds, we need not decide—and therefore express no opinion on—whether the First Amendment requires the same result.

III

Petitioners contend that even if Westside has created a limited open forum within the meaning of the Act, its denial of official recognition to the proposed Christian club must nevertheless stand because the Act violates the Establishment Clause of the First Amendment, as applied to the States through the Fourteenth Amendment.

We disagree. In Widmar, we applied the three-part Lemon test to hold that an “equal access” policy, at the university level, does not violate the Establishment Clause. We think the logic of Widmar applies with equal force to the Equal Access Act.

Petitioners’ principal contention is that the Act has the primary effect of advancing religion. Specifically, petitioners urge that, because the student religious meetings are held under school aegis, and because the State’s compulsory attendance laws bring the students together (and thereby provide a ready-made audience for student evangelists), an objective observer in the position of a secondary school student will perceive official school support for such religious meetings.

We disagree. First, although we have invalidated the use of public funds to pay for teaching state-required subjects at parochial schools, in part because of the risk of creating “a crucial symbolic link between government and religion, thereby enlisting—at least in the eyes of impressionable youngsters—the powers of government to the support of the religious denomination operating the school,” there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.

Second, we note that the Act expressly limits participation by school officials at meetings of student religious groups, §§4071(c)(2) and (3), and that any860 such meetings must be held during “noninstructional time,” §4071(b). The Act therefore avoids the problems of “the students’ emulation of teachers as role models” and “mandatory attendance requirements.” To be sure, the possibility of student peer pressure remains, but there is little if any risk of official state endorsement or coercion where no formal classroom activities are involved and no school officials actively participate. Moreover, petitioners’ fear of a mistaken inference of endorsement is largely self-imposed, because the school itself has control over any impressions it gives its students. To the extent a school makes clear that its recognition of respondents’ proposed club is not an endorsement of the views of the club’s participants, students will reasonably understand that the school’s official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech.

Third, the broad spectrum of officially recognized student clubs at Westside, and the fact that Westside students are free to initiate and organize additional student clubs, counteract any possible message of official endorsement of or preference for religion or a particular religious belief. Although a school may not itself lead or direct a religious club, a school that permits a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion. Under the Act, a school with a limited open forum may not lawfully deny access to a Jewish students’ club, a Young Democrats club, or a philosophy club devoted to the study of Nietzsche. To the extent that a religious club is merely one of many different student-initiated voluntary clubs, students should perceive no message of government endorsement of religion. Thus, we conclude that the Act does not, at least on its face and as applied to Westside, have the primary effect of advancing religion.

Justice Marshall, with whom Justice Brennan joins, concurring in the judgment.

I agree with the majority that “noncurriculum” must be construed broadly to “prohibit schools from discriminating on the basis of the content of a student group’s speech.” The Act’s low threshold for triggering equal access, however, raises serious Establishment Clause concerns where secondary schools with fora that differ substantially from the forum in Widmar are required to grant access to student religious groups. Indeed, as applied in the present case, the Act mandates a religious group’s access to a forum that is dedicated to promoting fundamental values and citizenship as defined by the school. The Establishment Clause does not forbid the operation of the Act in such circumstances, but it does require schools to change their relationship to their fora so as to disassociate themselves effectively from religious clubs’ speech.

The plurality suggests that our conclusion in Widmar controls this case. But the plurality fails to recognize that the wide-open and independent character of the student forum in Widmar differs substantially from the forum at Westside.

861

Westside currently does not recognize any student club that advocates a controversial viewpoint. Indeed, the clubs at Westside that trigger the Act involve scuba diving, chess, and counseling for special education students. As a matter of school policy, Westside encourages student participation in clubs based on a broad conception of its educational mission. That mission comports with the Court’s acknowledgment “that public schools are vitally important ‘in the preparation of individuals for participation as citizens,’ and as vehicles for ‘inculcating fundamental values necessary to the maintenance of a democratic political system.’ ” Given the nature and function of student clubs at Westside, the school makes no effort to disassociate itself from the activities and goals of its student clubs.

The entry of religious clubs into such a realm poses a real danger that those clubs will be viewed as part of the school’s effort to inculcate fundamental values. The school’s message with respect to its existing clubs is not one of toleration but one of endorsement. As the majority concedes, the program is part of the “district’s commitment to teaching academic, physical, civic, and personal skills and values.” But although a school may permissibly encourage its students to become well rounded as student-athletes, student-musicians, and student-tutors, the Constitution forbids schools to encourage students to become well rounded as student-worshippers. Neutrality towards religion, as required by the Constitution, is not advanced by requiring a school that endorses the goals of some noncontroversial secular organizations to endorse the goals of religious organizations as well.

For this reason, the plurality’s reliance on Widmar is misplaced. The University of Missouri took concrete steps to ensure “that the University’s name will not ‘be identified in any way with the aims, policies, programs, products, or opinions of any organization or its members,’ ” Westside, in contrast, explicitly promotes its student clubs “as a vital part of the total education program [and] as a means of developing citizenship.” And while the University of Missouri recognized such clubs as the Young Socialist Alliance and the Young Democrats, Westside has recognized no such political clubs.

The different approaches to student clubs embodied in these policies reflect a significant difference, for Establishment Clause purposes, between the respective roles that Westside High School and the University of Missouri attempt to play in their students’ lives. To the extent that a school emphasizes the autonomy of its students, as does the University of Missouri, there is a corresponding decrease in the likelihood that student speech will be regarded as school speech. Conversely, where a school such as Westside regards its student clubs as a mechanism for defining and transmitting fundamental values, the inclusion of a religious club in the school’s program will almost certainly signal school endorsement of the religious practice.

Thus, the underlying difference between this case and Widmar is not that college and high school students have varying capacities to perceive the subtle differences between toleration and endorsement, but rather that the University of Missouri and Westside actually choose to define their respective missions in different ways. That high schools tend to emphasize student autonomy less than universities may suggest that high school administrators tend to perceive a862 difference in the maturity of secondary and university students. But the school’s behavior, not the purported immaturity of high school students, is dispositive. If Westside stood apart from its club program and expressed the view, endorsed by Congress through its passage of the Act, that high school students are capable of engaging in wide-ranging discussion of sensitive and controversial speech, the inclusion of religious groups in Westside’s forum would confirm the school’s commitment to nondiscrimination. Here, though, the Act requires the school to permit religious speech in a forum explicitly designed to advance the school’s interest in shaping the character of its students.

Given these substantial risks posed by the inclusion of the proposed Christian club within Westside’s present forum, Westside must redefine its relationship to its club program. The plurality recognizes that such redefinition is necessary to avoid the risk of endorsement and construes the Act accordingly. The plurality holds that the Act “limits participation by school officials at meetings of student religious groups,” (citing §§4071(c)(2) and (3)), and requires religion club meetings to be held during noninstructional time (citing §4071(b)). It also holds that schools may not sponsor any religious meetings (citing §4072(2)). Finally, and perhaps most importantly, the plurality states that schools bear the responsibility for taking whatever further steps are necessary to make clear that their recognition of a religious club does not reflect their endorsement of the views of the club’s participants.

Westside thus must do more than merely prohibit faculty members from actively participating in the Christian club’s meetings. It must fully disassociate itself from the club’s religious speech and avoid appearing to sponsor or endorse the club’s goals. It could, for example, entirely discontinue encouraging student participation in clubs and clarify that the clubs are not instrumentally related to the school’s overall mission. Or, if the school sought to continue its general endorsement of those student clubs that did not engage in controversial speech, it could do so if it also affirmatively disclaimed any endorsement of the Christian club.

Justice Stevens, dissenting.

The dictionary is a necessary, and sometimes sufficient, aid to the judge confronted with the task of construing an opaque Act of Congress. In a case like this, however, I believe we must probe more deeply to avoid a patently bizarre result. Can Congress really have intended to issue an order to every public high school in the Nation stating, in substance, that if you sponsor a chess club, a scuba diving club, or a French club—without having formal classes in those subjects—you must also open your doors to every religious, political, or social organization, no matter how controversial or distasteful its views may be? I think not. A fair review of the legislative history of the Equal Access Act discloses that Congress intended to recognize a much narrower forum than the Court has legislated into existence today.

863

[T]he distinctions between Westside’s program and the University of Missouri’s program suggest what is the best understanding of the Act: An extracurricular student organization is “noncurriculum related” if it has as its purpose (or as part of its purpose) the advocacy of partisan theological, political, or ethical views. A school that admits at least one such club has apparently made the judgment that students are better off if the student community is permitted to, and perhaps even encouraged to, compete along ideological lines. This pedagogical strategy may be defensible or even desirable. But it is wrong to presume that Congress endorsed that strategy—and dictated its nationwide adoption—simply because it approved the application of Widmar to high schools. And it seems absurd to presume that Westside has invoked the same strategy by recognizing clubs like the Swimming Timing Team and Subsurfers which, though they may not correspond directly to anything in Westside’s course offerings, are no more controversial than a grilled cheese sandwich.

Accordingly, as I would construe the Act, a high school could properly sponsor a French club, a chess club, or a scuba diving club simply because their activities are fully consistent with the school’s curricular mission. It would not matter whether formal courses in any of those subjects—or in directly related subjects—were being offered as long as faculty encouragement of student participation in such groups would be consistent with both the school’s obligation of neutrality and its legitimate pedagogical concerns. Nothing in Widmar implies that the existence of a French club, for example, would create a constitutional obligation to allow student members of the Ku Klux Klan or the Communist Party to have access to school facilities. More importantly, nothing in that case suggests that the constitutional issue should turn on whether French is being taught in a formal course while the club is functioning.

Conversely, if a high school decides to allow political groups to use its facilities, it plainly cannot discriminate among controversial groups because it agrees with the positions of some and disagrees with the ideas advocated by others. Again, the fact that the history of the Republican Party might be taught in a political science course could not justify a decision to allow the young Republicans to form a club while denying Communists, white supremacists, or Christian Scientists the same privilege.

Not only is the Court’s preferred construction subject to manipulation, but it also is exceptionally difficult to apply even in the absence of deliberate evasion. For example, the Court believes that Westside’s swim team is “directly related” to the curriculum, but the scuba diving club is not. The Court’s analysis makes every high school football program a borderline case, for while many schools teach football in physical education classes, they usually teach touch football or flag football, and the varsity team usually plays tackle football. Tackle football involves more equipment and greater risk, and so arguably stands in the same relation to touch football as scuba diving does to swimming. Likewise, it would appear that high school administrators might reasonably have difficulty figuring out whether a cheerleading squad or pep club might trigger the Act’s application. The answer, I suppose, might depend upon how strongly students were864 encouraged to support the football team. Obviously, every test will produce some hard cases, but the Court’s test seems to produce nothing but hard cases.

III

Against all these arguments the Court interposes Noah Webster’s famous dictionary. It is a massive tome but no match for the weight the Court would put upon it. The Court relies heavily on the dictionary’s definition of “curriculum.” That word, of course, is not the Act’s; moreover, the word “noncurriculum” is not in the dictionary. Purely as a matter of defining a newly coined word, the term “noncurriculum” could fairly be construed to describe either the subjects that are “not a part of the current curriculum” or the subjects that “cannot properly be included in a public school curriculum.” Either of those definitions is perfectly “sensible” because both describe subjects “that are not related to the body of courses offered by the school.” When one considers the basic purpose of the Act, and its unquestioned linkage to our decision in Widmar, the latter definition surely is the more “sensible.”

NOTES AND QUESTIONS

1. The obligations of the Equal Access Act are triggered when a school opens its facilities to one “noncurriculum related student group.” What are the possible interpretations of this term? Which interpretation makes the most sense as a matter of legislative text and legislative purpose?

2. What is a noncurriculum related student group? Justice Stevens suggests in dissent that the majority’s view will generate a series of hard cases about which groups count as “noncurriculum related.” See, e.g., Straights & Gays for Equality (SAGE) v. Osseo Area Schs., 471 F.3d 908 (8th Cir. 2006) (school’s cheerleading squad and synchronized swimming team were noncurriculum-related student groups); Pope v. East Brunswick Bd. of Educ., 12 F.3d 1244 (3d Cir. 1993) (school had restricted student group access in response to the EAA with the goal of creating a closed forum, but the school failed to escape act’s obligations because it continued to permit meetings of the Key Club, a student service organization affiliated with Kiwanis); Boyd Cnty. High Sch. Gay Straight Alliance v. Bd. of Educ. of Boyd Cnty., Ky., 258 F. Supp. 2d 667 (E.D. Ky. 2003) (drama club was noncurriculum-related student group even though arts and humanities course included a section on drama since the course did not teach acting and there was no academic credit for participating in play performed at school).

3. Sauce for the gander: gay rights groups and the EAA. As is suggested by Pope, schools may choose to restrict student group access to avoid the obligations of the EAA. Yet as the preceding note makes clear, many courts have interpreted “noncurriculum-related student group” broadly enough to make the political costs of failing to have a “limited open forum” quite high. Though the act was passed primarily with an eye toward empowering student religious groups, student gay rights groups have also been successful in using the EAA to get access to school facilities. See, e.g., Osseo, supra; Boyd, supra; Colin ex rel. Colin v. Orange865 Unified Sch. Dist., 83 F. Supp. 2d 1135 (C.D. Cal. 2000). But see Caudillo ex rel. Caudillo v. Lubbock Indep. Sch. Dist., 311 F. Supp. 2d 550 (N.D. Tex. 2004) (denying gay-straight student association’s request for recognition partly on the basis of an EAA provision stating that “[n]othing in this subchapter shall be construed to limit the authority of the school, its agents or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary.” 20 U.S.C. §4071(f) (2006)).

4. Equal access and nondiscrimination requirements. Public schools and universities usually require as a condition of official recognition that student groups agree not to discriminate on the basis of race, gender, national origin, or religion. In some localities, the school policies also prohibit discrimination on the basis of sexual orientation. Religious student groups may require that their members (or at least their leaders) sign a statement of faith, and some may also expect members or leaders to affirm the belief that homosexuality is wrong. Does denying recognition to religious student groups based on their failure to comply with general nondiscrimination requirements violate the EAA? Compare Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839 (2d Cir. 1996), with Truth v. Kent Sch. Dist., 542 F.3d 634 (9th Cir. 2008), overruled on other grounds by Los Angeles Cnty. v. Humphries, 131 S. Ct. 447 (2010).

The Supreme Court appeared ready to address an analogous question under the First Amendment at the university level in Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010), but the litigation unfolded in a manner that left the most difficult questions unresolved. To briefly summarize, the student chapter of the Christian Legal Society (CLS) at the University of California, Hastings College of Law (Hastings), sought recognition from the law school. The CLS bylaws require members and officers to sign a statement of faith that includes the belief that sexual activity is wrongful except in the context of marriage between a man and a woman. According to the dissenters in Martinez, Hastings denied CLS recognition because CLS failed to comply with the school’s policy against discrimination on the basis of religion or sexual orientation. Denial on this basis, the dissenters argued, was unconstitutional discrimination against CLS on the basis of its religious viewpoint. Hastings and the Supreme Court majority, however, took the position that Hastings had denied recognition to CLS because it failed to comply with an “all-comers” policy requiring all recognized student groups to accept all students who wish to join regardless of their beliefs or status. The Court ruled that the all-comers policy was a reasonable, viewpoint-neutral restriction on access to the student group forum and hence its application against CLS was constitutional.

3. The Limited Public Forum: Is Religion a Subject or a Viewpoint?

The EAA established statutory equal access rights for public secondary schools. Neither Widmar nor the act addressed questions about community use of school buildings or access rights at primary schools. The Court addressed these866 questions in the following cases. In each case, the Court regarded the forum at issue as a “limited public forum” and thus focused on whether the exclusion of religious groups constituted viewpoint discrimination.

Lamb’s Chapel v. Center Moriches Union Free School District

508 U.S. 384 (1993)

Justice White delivered the opinion of the Court.

New York Educ. Law §414 authorizes local school boards to adopt reasonable regulations for the use of school property for 10 specified purposes when the property is not in use for school purposes. Pursuant to §414’s empowerment of local school districts, the Board of Center Moriches Union Free School District (District) has issued rules and regulations with respect to the use of school property when not in use for school purposes. The rules allow only 2 of the 10 purposes authorized by §414: social, civic, or recreational uses (Rule 10) and use by political organizations if secured in compliance with §414 (Rule 8). Rule 7, however, consistent with the judicial interpretation of state law, provides that “[t]he school premises shall not be used by any group for religious purposes.”

The issue in this case is whether, against this background of state law, it violates the Free Speech Clause of the First Amendment to deny a church access to school premises to exhibit for public viewing and for assertedly religious purposes, a film series dealing with family and child-rearing issues faced by parents today.

Petitioners (Church) are Lamb’s Chapel, an evangelical church in the community of Center Moriches, and its pastor John Steigerwald. Twice the Church applied to the District for permission to use school facilities to show a six-part film series containing lectures by Doctor James Dobson. The brochure stated that the film series would discuss Dr. Dobson’s views on the undermining influences of the media that could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage. The District denied the first application, saying that “[t]his film does appear to be church related and therefore your request must be refused.”

[The Church sued the District under 42 U.S.C. §1983. The district court ruled for the school district, holding that the district had created a limited public forum and that its exclusion of use for religious purposes was reasonable and viewpoint-neutral. The Second Circuit affirmed.]

There is no question that the District, like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated. It is also common ground that the District need not have permitted after-hours867 use of its property for any of the uses permitted by N.Y. Educ. Law §414. The District, however, did open its property for 2 of the 10 uses permitted by §414.

With respect to public property that is not a designated public forum open for indiscriminate public use for communicative purposes, we have said that “[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 806 (1985).

The Court of Appeals thought that the application of Rule 7 in this case was viewpoint neutral because it had been, and would be, applied in the same way to all uses of school property for religious purposes. That all religions and all uses for religious purposes are treated alike under Rule 7, however, does not answer the critical question whether it discriminates on the basis of viewpoint to permit school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint.

There is no suggestion from the courts below or from the District or the State that a lecture or film about child rearing and family values would not be a use for social or civic purposes otherwise permitted by Rule 10. The film series involved here no doubt dealt with a subject otherwise permissible under Rule 10, and its exhibition was denied solely because the series dealt with the subject from a religious standpoint. The principle that has emerged from our cases “is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.”

The District, as a respondent, would save its judgment below on the ground that to permit its property to be used for religious purposes would be an establishment of religion forbidden by the First Amendment.

We have no more trouble than did the Widmar Court in disposing of the claimed defense on the ground that the posited fears of an Establishment Clause violation are unfounded. The showing of this film series would not have been during school hours, would not have been sponsored by the school, and would have been open to the public, not just to church members. The District property had repeatedly been used by a wide variety of private organizations. Under these circumstances, as in Widmar, there would have been no realistic danger that the community would think that the District was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental.

Reversed.

NOTES AND QUESTIONS

1. Lamb’s Chapel was a unanimous decision. Given Widmar, could it have come out differently?

2. Lamb’s Chapel is the first of the equal access line of cases that turns on the distinction between (possibly permissible) subject matter restrictions and (almost certainly unconstitutional) viewpoint restrictions. A simple example illustrates the distinction: banning all discussion of the legal and moral status868 of abortion in a public forum would be a subject matter restriction while banning only “pro-life” or “pro-choice” discussion would be a viewpoint restriction. The latter seems worse because the state’s decisions are more likely to “distort” the marketplace of ideas. Consequently, subject matter restrictions can be upheld if they are “reasonable in relation to the purpose of the forum,” while viewpoint restrictions are unconstitutional unless they are narrowly tailored to serve a compelling interest. Can “religion” or “religious activity” or “religious speech” be a “subject matter” in some contexts and a “viewpoint” in others? How hard a case is Lamb’s Chapel for drawing the line between religion as subject matter and religion as viewpoint?

The Court’s next equal access case, Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), involved the university’s refusal to fund an evangelical student magazine called Wide Awake, which had applied for support from the Student Activities Fund (SAF). Rosenberger was a harder case than Lamb’s Chapel in two respects. First, the question of whether the university’s policy barring the funding of “religious activity” (defined as “activity that primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality”) should count as viewpoint discrimination was less clear than in Lamb’s Chapel. More important, the fact that the “aid to religion” in this case was money instead of building access brought out the tensions between the equal access line of cases and the “no-aid” funding cases discussed in Section D of this chapter. The result was a 5-4 decision holding that the university’s exclusion of Wide Awake was viewpoint discrimination and that funding the magazine would not violate the Establishment Clause.

On the speech issue, Justice Kennedy’s majority opinion stated:

The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable. The University…insists that…the Guidelines draw lines based on content, not viewpoint.…[I]t must be acknowledged, the distinction is not a precise one. It is, in a sense, something of an understatement to speak of religious thought and discussion as just a viewpoint, as distinct from a comprehensive body of thought. The nature of our origins and destiny and their dependence upon the existence of a divine being have been subjects of philosophic inquiry throughout human history. We conclude, nonetheless, that here, as in Lamb’s Chapel, viewpoint discrimination is the proper way to interpret the University’s objections to Wide Awake. By the very terms of the SAF prohibition, the University does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints. Religion may be a vast area of inquiry, but it also provides, as it did here, a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered. The prohibited perspective, not the general subject matter, resulted in the refusal to make third-party payments, for the subjects discussed were otherwise within the approved category of publications.

Id. at 830-831. Justice Souter’s dissent countered:

If the Guidelines were written or applied so as to limit only such Christian advocacy and no other evangelical efforts that might compete with it, the discrimination would be based on viewpoint. But that is not what the regulation authorizes; it applies to Muslim and Jewish869 and Buddhist advocacy as well as to Christian. And since it limits funding to activities promoting or manifesting a particular belief not only “in” but “about” a deity or ultimate reality, it applies to agnostics and atheists as well as it does to deists and theists. The Guidelines, and their application to Wide Awake, thus do not skew debate by funding one position but not its competitors. As understood by their application to Wide Awake, they simply deny funding for hortatory speech that “primarily promotes or manifests” any view on the merits of religion; they deny funding for the entire subject matter of religious apologetics.

Id. at 895-896 (Souter, J., dissenting).

On the Establishment Clause issue, Rosenberger differed from earlier cases because SAF money would flow to support the dissemination of Wide Awake’s evangelical Christian message. More precisely, Wide Awake would be able to submit its printing bills to the SAF for payment; the SAF would then pay the printer. Justice Kennedy explained:

The Court of Appeals (and the dissent) are correct to extract from our decisions the principle that we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions. The error is not in identifying the principle, but in believing that it controls this case. We do not confront a case where, even under a neutral program that includes nonsectarian recipients, the government is making direct money payments to an institution or group that is engaged in religious activity. Neither the Court of Appeals nor the dissent, we believe, takes sufficient cognizance of the undisputed fact that no public funds flow directly to [Wide Awake’s] coffers.

It does not violate the Establishment Clause for a public university to grant access to its facilities on a religion-neutral basis to a wide spectrum of student groups, including groups that use meeting rooms for sectarian activities, accompanied by some devotional exercises. This is so even where the upkeep, maintenance, and repair of the facilities attributed to those uses are paid from a student activities fund to which students are required to contribute. The government usually acts by spending money. Even the provision of a meeting room, as in Mergens and Widmar, involved governmental expenditure, if only in the form of electricity and heating or cooling costs.…If the expenditure of governmental funds is prohibited whenever those funds pay for a service that is, pursuant to a religion-neutral program, used by a group for sectarian purposes, then Widmar, Mergens, and Lamb’s Chapel would have to be overruled. Given our holdings in these cases, it follows that a public university may maintain its own computer facility and give student groups access to that facility, including the use of the printers, on a religion neutral, say first-come-first-served, basis. If a religious student organization obtained access on that religion-neutral basis and used a computer to compose or a printer or copy machine to print speech with a religious content or viewpoint, the State’s action in providing the group with access would no more violate the Establishment Clause than would giving those groups access to an assembly hall. There is no difference in logic or principle, and no difference of constitutional significance, between a school using its funds to operate a facility to which students have access, and a school paying a third-party contractor to operate the facility on its behalf. The latter occurs here. The University provides printing services to a broad spectrum of student newspapers.…Any benefit to religion is incidental to the government’s provision of secular services for secular purposes on a religion-neutral basis. Printing is a routine, secular, and recurring attribute of student life.

Id. at 842-844. Dissenting on the Establishment Clause issue, Justice Souter emphasized that Wide Awake was not simply a magazine of religious commentary; instead, the magazine contained:

[S]traightforward exhortation to enter into a relationship with God as revealed in Jesus Christ, and to satisfy a series of moral obligations derived from the teachings of Jesus Christ.870 The subject is not the discourse of the scholar’s study or the seminar room, but of the evangelist’s mission station and the pulpit. It is nothing other than the preaching of the word, which (along with the sacraments) is what most branches of Christianity offer those called to the religious life. Using public funds for the direct subsidization of preaching the word is categorically forbidden under the Establishment Clause, and if the Clause was meant to accomplish nothing else, it was meant to bar this use of public money.

Id. at 867-868 (Souter, J., dissenting).

Finally, Justice Souter addressed the Court’s analogies between the financial aid at issue in Rosenberger and the building access at stake in Widmar and Lamb’s Chapel:

The Court reasons that the availability of a forum has economic value (the government built and maintained the building, while the speakers saved the rent for a hall); and that economically there is no difference between the University’s provision of the value of the room and the value, say, of the University’s printing equipment; and that therefore the University must be able to provide the use of the latter. Since it may do that, the argument goes, it would be unduly formalistic to draw the line at paying for an outside printer, who simply does what the magazine’s publishers could have done with the University’s own printing equipment.

The Court’s claim of support from these forum-access cases is ruled out by the very scope of their holdings. While they do indeed allow a limited benefit to religious speakers, they rest on the recognition that all speakers are entitled to use the street corner (even though the State paves the roads and provides police protection to everyone on the street) and on the analogy between the public street corner and open classroom space. Thus, the Court found it significant that the classroom speakers would engage in traditional speech activities in these forums, too, even though the rooms (like street corners) require some incidental state spending to maintain them. The analogy breaks down entirely, however, if the cases are read more broadly than the Court wrote them, to cover more than forums for literal speaking. There is no traditional street corner printing provided by the government on equal terms to all comers, and the forum cases cannot be lifted to a higher plane of generalization without admitting that new economic benefits are being extended directly to religion in clear violation of the principle barring direct aid.

Id. at 887-889 (Souter, J., dissenting).

NOTES AND QUESTIONS

1. Who has the better argument on whether the SAF’s refusal to fund Wide Awake was based on the magazine’s religious viewpoint? Justice Kennedy or Justice Souter?

2. Religion and politics. The Court notes that Wide Awake sought funding as a student media group rather than as a “religious organization.” The SAF Guidelines prohibited the funding of religious organizations, defined as organizations “whose purpose is to practice a devotion to an acknowledged ultimate reality or deity.” The ban on funding religious organizations was not challenged in Rosenberger. If it had been, what result?

Compare the SAF Guidelines for religious organizations and activities with those for political organizations and activities: “The prohibition on ‘political activities’ is defined so that it is limited to electioneering and lobbying. The871 Guidelines provide that ‘[t]hese restrictions on funding political activities are not intended to preclude funding of any otherwise eligible student organization which…espouses particular positions or ideological viewpoints, including those that may be unpopular or are not generally accepted.’ ” Id. at 825. How should courts decide when politics is a “viewpoint” rather than a “subject matter”?

3. Consider the following perspective on the subject matter/viewpoint distinction:

The basic idea of the distinction between subject-matter and viewpoint-based restrictions is that in the first instance, the government chooses to remove a certain topic (and thus all the competing positions on that topic) from the agenda for discussion. This may impoverish public discourse and will reduce overall opportunities for speech, but (at least in theory) it generally will not have much effect in skewing public debate in favor of some ideas at the expense of their natural competitors. All are equally disadvantaged by the loss of one set of opportunities for expression and thus must shift their expressive energies to other venues. In contrast, viewpoint restrictions skew debate by giving some competing viewpoints free rein at the expense of others. Yet to decide whether all the positions on a particular subject are excluded from debate or only some are, we need to know how to describe what the debate is about. The problem, of course, is that “the debate” can be described at different levels of generality; whether a restriction appears to concern a viewpoint or a subject matter depends on the level of generality chosen.…Judge Reinhardt provides a memorable illustration of the point:

[S]hould a library’s decision to exclude all books concerning astrology be treated as content discrimination, because astrology is a subject matter about which astrologers (and others) may have different views, and the library has excluded all discussion of that subject matter? Or should such a policy be treated as viewpoint discrimination because with respect to the subject matter of the study of the heavens, the library affords preferential treatment to the science of astronomy and bans the study of astrology?

Giebel v. Sylvester, 244 F.3d 1182, 1188 n.10 (9th Cir. 2001). The answer to these rhetorical questions depends entirely on the level of generality at which the topic of conversation is defined, and for this reason Judge Reinhardt describes the subject matter/viewpoint discrimination distinction as “tenuous.” Id.

John E. Taylor, Tinker and Viewpoint Discrimination, 77 UMKC L. Rev. 569, 631, 630 n.251 (2009). Do you agree with this criticism of the distinction between subject matter and viewpoint? If so, what follows? Can courts do without a distinction of this sort?

4. On the Establishment Clause side, the shift from aid in the form of building access to aid in the form of money in Rosenberger made the tensions between the no-aid funding cases (Lemon and its progeny) and the equal access cases impossible to ignore. Can a principled line be drawn between the earlier equal access cases and Rosenberger?

5. SAFs and compelled speech. The University of Virginia, like nearly all universities, imposed on students a mandatory activities fee. The Court noted that “we do not have before us the question whether an objecting student has the First Amendment right to demand a pro rata return to the extent the fee is expended for speech to which he or she does not subscribe.” Rosenberger, 515 U.S. at 840. In Board of Regents of the University of Wisconsin System v. Southworth,872 529 U.S. 1346 (2000), the Court held that the First Amendment rights of objecting students are adequately protected if the university’s system for allocating mandatory fees is viewpoint-neutral. For background on Southworth, see Linda S. Greene, The Story of Board of Regents of the University of Wisconsin System v. Southworth: “Losing Battles, Winning Wars,” in Education Law Stories (Michael Olivas & Ronna Greff Schneider eds., 2008).

Good News Club v. Milford Central School

533 U.S. 98 (2001)

Justice Thomas delivered the opinion of the Court.

This case presents two questions. The first question is whether Milford Central School violated the free speech rights of the Good News Club when it excluded the Club from meeting after hours at the school. The second question is whether any such violation is justified by Milford’s concern that permitting the Club’s activities would violate the Establishment Clause. We conclude that Milford’s restriction violates the Club’s free speech rights and that no Establishment Clause concern justifies that violation.

In 1992, respondent Milford Central School (Milford) enacted a community use policy adopting seven of [N.Y. Educ. Law] §414’s purposes for which its building could be used after school. Two of the stated purposes are relevant here. First, district residents may use the school for “instruction in any branch of education, learning or the arts.” Second, the school is available for “social, civic and recreational meetings and entertainment events, and other uses pertaining to the welfare of the community, provided that such uses shall be nonexclusive and shall be opened to the general public.”

Stephen and Darleen Fournier reside within Milford’s district and therefore are eligible to use the school’s facilities as long as their proposed use is approved by the school. Together they are sponsors of the local Good News Club, a private Christian organization for children ages 6 to 12.

[The Fourniers sought permission from the school superintendent to hold weekly meetings after school in the school cafeteria. In response to a request from the school district’s attorney, the Good News Club submitted this description of its activities]: “The Club opens its session with Ms. Fournier taking attendance. As she calls a child’s name, if the child recites a Bible verse the child receives a treat. After attendance, the Club sings songs. Next Club members engage in games that involve, inter alia, learning Bible verses. Ms. Fournier then relates a Bible story and explains how it applies to Club members’ lives. The Club closes with prayer. Finally, Ms. Fournier distributes treats and the Bible verses for memorization.”[The school superintendent and, ultimately, the Milford Board of Education denied Good News Club’s request to use school facilities “for the purpose of conducting religious instruction and Bible study.” Good News Club sued and lost in federal district court.]

873

The Club appealed, and a divided panel of the United States Court of Appeals for the Second Circuit affirmed. 202 F.3d 502 (2000). First, the court rejected the Club’s contention that Milford’s restriction against allowing religious instruction in its facilities is unreasonable. Second, it held that, because the subject matter of the Club’s activities is “quintessentially religious,” id. at 510, and the activities “fall outside the bounds of pure ‘moral and character development,’ ” id. at 511, Milford’s policy of excluding the Club’s meetings was constitutional subject discrimination, not unconstitutional viewpoint discrimination.

When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. The State may be justified “in reserving [its forum] for certain groups or for the discussion of certain topics.” The State’s power to restrict speech, however, is not without limits. The restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be “reasonable in light of the purpose served by the forum.”

III

Applying this test, we first address whether the exclusion constituted viewpoint discrimination. We are guided in our analysis by two of our prior opinions, Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), and Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). In Lamb’s Chapel, we held that a school district violated the Free Speech Clause of the First Amendment when it excluded a private group from presenting films at the school based solely on the films’ discussions of family values from a religious perspective. Likewise, in Rosenberger, we held that a university’s refusal to fund a student publication because the publication addressed issues from a religious perspective violated the Free Speech Clause. Concluding that Milford’s exclusion of the Good News Club based on its religious nature is indistinguishable from the exclusions in these cases, we hold that the exclusion constitutes viewpoint discrimination. Because the restriction is viewpoint discriminatory, we need not decide whether it is unreasonable in light of the purposes served by the forum.

Milford has opened its limited public forum to activities that serve a variety of purposes, including events “pertaining to the welfare of the community.” Milford interprets its policy to permit discussions of subjects such as child rearing, and of “the development of character and morals from a religious perspective.” For example, this policy would allow someone to use Aesop’s Fables to teach children moral values. Additionally, a group could sponsor a debate on whether there should be a constitutional amendment to permit prayer in public schools, and the Boy Scouts could meet “to influence a boy’s character, development and spiritual growth.” In short, any group that “promote[s] the moral and character development of children” is eligible to use the school building.

874

Just as there is no question that teaching morals and character development to children is a permissible purpose under Milford’s policy, it is clear that the Club teaches morals and character development to children. For example, no one disputes that the Club instructs children to overcome feelings of jealousy, to treat others well regardless of how they treat the children, and to be obedient, even if it does so in a nonsecular way.

Despite our holdings in Lamb’s Chapel and Rosenberger, the Court of Appeals, like Milford, believed that its characterization of the Club’s activities as religious in nature warranted treating the Club’s activities as different in kind from the other activities permitted by the school. See 202 F.3d at 510 (the Club “is doing something other than simply teaching moral values”). The “Christian viewpoint” is unique, according to the court, because it contains an “additional layer” that other kinds of viewpoints do not. That is, the Club “is focused on teaching children how to cultivate their relationship with God through Jesus Christ,” which it characterized as “quintessentially religious.” With these observations, the court concluded that, because the Club’s activities “fall outside the bounds of pure ‘moral and character development,’ ” the exclusion did not constitute viewpoint discrimination.

We disagree that something that is “quintessentially religious” or “decidedly religious in nature” cannot also be characterized properly as the teaching of morals and character development from a particular viewpoint. See 202 F.3d at 512 (Jacobs, J., dissenting) (“[W]hen the subject matter is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters.”). What matters for purposes of the Free Speech Clause is that we can see no logical difference in kind between the invocation of Christianity by the Club and the invocation of teamwork, loyalty, or patriotism by other associations to provide a foundation for their lessons. It is apparent that the unstated principle of the Court of Appeals’ reasoning is its conclusion that any time religious instruction and prayer are used to discuss morals and character, the discussion is simply not a “pure” discussion of those issues. According to the Court of Appeals, reliance on Christian principles taints moral and character instruction in a way that other foundations for thought or viewpoints do not. We, however, have never reached such a conclusion.

Milford argues that, even if its restriction constitutes viewpoint discrimination, its interest in not violating the Establishment Clause outweighs the Club’s interest in gaining equal access to the school’s facilities. In other words, according to Milford, its restriction was required to avoid violating the Establishment Clause. We disagree.

As in Lamb’s Chapel, the Club’s meetings were held after school hours, not sponsored by the school, and open to any student who obtained parental consent, not just to Club members. As in Widmar, Milford made its forum available to other organizations. The Club’s activities are materially indistinguishable from those in Lamb’s Chapel and Widmar. Thus, Milford’s reliance on the Establishment Clause is unavailing.

875

Milford attempts to distinguish Lamb’s Chapel and Widmar by emphasizing that Milford’s policy involves elementary school children. According to Milford, children will perceive that the school is endorsing the Club and will feel coercive pressure to participate, because the Club’s activities take place on school grounds, even though they occur during nonschool hours. This argument is unpersuasive.

First, we have held that “a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.” Rosenberger, 515 U.S. at 839 (emphasis added). Milford’s implication that granting access to the Club would do damage to the neutrality principle defies logic. For the “guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” Id. at 839. The Good News Club seeks nothing more than to be treated neutrally and given access to speak about the same topics as are other groups.

Second, to the extent we consider whether the community would feel coercive pressure to engage in the Club’s activities, cf. Lee v. Weisman, 505 U.S. 577, 592-93 (1992), the relevant community would be the parents, not the elementary school children. It is the parents who choose whether their children will attend the Good News Club meetings. Because the children cannot attend without their parents’ permission, they cannot be coerced into engaging in the Good News Club’s religious activities. Milford does not suggest that the parents of elementary school children would be confused about whether the school was endorsing religion. Nor do we believe that such an argument could be reasonably advanced.

Third, whatever significance we may have assigned in the Establishment Clause context to the suggestion that elementary school children are more impressionable than adults, cf., e.g., id., at 592; School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985) (stating that “symbolism of a union between church and state is most likely to influence children of tender years, whose experience is limited and whose beliefs consequently are the function of environment as much as of free and voluntary choice”), we have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present.

Finally, even if we were to inquire into the minds of schoolchildren in this case, we cannot say the danger that children would misperceive the endorsement of religion is any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded from the public forum. This concern is particularly acute given the reality that Milford’s building is not used only for elementary school children. Students, from kindergarten through the 12th grade, all attend school in the same building. There may be as many, if not more, upperclassmen as elementary school children who occupy the school after hours. For that matter, members of the public writ large are permitted in the school after hours pursuant to the community use policy. Any bystander could conceivably be aware of the school’s use policy and its876 exclusion of the Good News Club, and could suffer as much from viewpoint discrimination as elementary school children could suffer from perceived endorsement.

We cannot operate, as Milford would have us do, under the assumption that any risk that small children would perceive endorsement should counsel in favor of excluding the Club’s religious activity. We decline to employ Establishment Clause jurisprudence using a modified heckler’s veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive. There are countervailing constitutional concerns related to rights of other individuals in the community. In this case, those countervailing concerns are the free speech rights of the Club and its members. And, we have already found that those rights have been violated, not merely perceived to have been violated, by the school’s actions toward the Club.

We are not convinced that there is any significance in this case to the possibility that elementary school children may witness the Good News Club’s activities on school premises, and therefore we can find no reason to depart from our holdings in Lamb’s Chapel and Widmar. Accordingly, we conclude that permitting the Club to meet on the school’s premises would not have violated the Establishment Clause.²⁷

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justice Stevens, dissenting.

The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb’s Chapel illustrates this category. Second, there is religious speech that amounts to worship, or its equivalent. Our decision in Widmar v. Vincent concerned such speech. Third, there is an intermediate category that is aimed principally at proselytizing or inculcating belief in a particular religious faith. The novel question that this case presents concerns the constitutionality of a public school’s attempt to limit the scope of a public forum it has created. More specifically, the question is whether a school can, consistently with the First Amendment, create a limited public forum that admits the first type of religious speech without allowing the other two.

Distinguishing speech from a religious viewpoint, on the one hand, from religious proselytizing, on the other, is comparable to distinguishing meetings to discuss political issues from meetings whose principal purpose is to recruit new members to join a political organization. If a school decides to authorize afterschool discussions of current events in its classrooms, it may not exclude people from expressing their views simply because it dislikes their particular political877 opinions. But must it therefore allow organized political groups—for example, the Democratic Party, the Libertarian Party, or the Ku Klux Klan—to hold meetings, the principal purpose of which is not to discuss the current-events topic from their own unique point of view but rather to recruit others to join their respective groups? I think not. Such recruiting meetings may introduce divisiveness and tend to separate young children into cliques that undermine the school’s educational mission. Cf. Lehman v. Shaker Heights, 418 U.S. 298 (1974) (upholding a city’s refusal to allow “political advertising” on public transportation).

School officials may reasonably believe that evangelical meetings designed to convert children to a particular religious faith pose the same risk. And, just as a school may allow meetings to discuss current events from a political perspective without also allowing organized political recruitment, so too can a school allow discussion of topics such as moral development from a religious (or nonreligious) perspective without thereby opening its forum to religious proselytizing or worship. See, e.g., Campbell v. St. Tammany Parish School Board, 231 F.3d 937, 942 (C.A.5 2000) (“Under the Supreme Court’s jurisprudence, a government entity such as a school board has the opportunity to open its facilities to activity protected by the First Amendment, without inviting political or religious activities presented in a form that would disserve its efforts to maintain neutrality”).

The particular limitation of the forum at issue in this case is one that prohibits the use of the school’s facilities for “religious purposes.” It is clear that, by “religious purposes,” the school district did not intend to exclude all speech from a religious point of view. See App. N13-N15 (testimony of the superintendent for Milford schools indicating that the policy would permit people to teach “that man was created by God as described in the Book of Genesis” and that crime was caused by society’s “lack of faith in God”). Instead, it sought only to exclude religious speech whose principal goal is to “promote the gospel.” In other words, the school sought to allow the first type of religious speech while excluding the second and third types. As long as this is done in an evenhanded manner, I see no constitutional violation in such an effort. The line between the various categories of religious speech may be difficult to draw, but I think that the distinctions are valid, and that a school, particularly an elementary school, must be permitted to draw them.

Justice Souter, with whom Justice Ginsburg joins, dissenting.

While Good News’s program utilizes songs and games, the heart of the meeting is the “challenge” and “invitation,” which are repeated at various times throughout the lesson. During the challenge, “saved” children who “already believe in the Lord Jesus as their Savior” are challenged to “ ‘stop and ask God for the strength and the “want”…to obey Him.’ ” They are instructed that “if you know Jesus as your Savior, you need to place God first in your life. And if you don’t know Jesus as Savior and if you would like to, then we will—we will pray with you separately, individually.…And the challenge would be, those of you who know Jesus as Savior, you can rely on God’s strength to obey Him.”

878

It is beyond question that Good News intends to use the public school premises not for the mere discussion of a subject from a particular, Christian point of view, but for an evangelical service of worship calling children to commit themselves in an act of Christian conversion. The majority avoids this reality only by resorting to the bland and general characterization of Good News’s activity as “teaching of morals and character, from a religious standpoint.” If the majority’s statement ignores reality, as it surely does, then today’s holding may be understood only in equally generic terms. Otherwise, indeed, this case would stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque.

Milford’s actions would offend the Establishment Clause if they carried the message of endorsing religion under the circumstances, as viewed by a reasonable observer. The majority concludes that such an endorsement effect is out of the question in Milford’s case, because the context here is “materially indistinguishable” from the facts in Lamb’s Chapel and Widmar. What we know about this case looks very little like Widmar or Lamb’s Chapel. The cohort addressed by Good News is not university students with relative maturity, or even high school pupils, but elementary school children as young as six. Nor is Milford’s limited forum anything like the sites for wide-ranging intellectual exchange that were home to the challenged activities in Widmar and Lamb’s Chapel. In Widmar, the nature of the university campus and the sheer number of activities offered precluded the reasonable college observer from seeing government endorsement in any one of them, and so did the time and variety of community use in the Lamb’s Chapel case.

The timing and format of Good News’s gatherings, on the other hand, may well affirmatively suggest the imprimatur of officialdom in the minds of the young children. The club is open solely to elementary students (not the entire community, as in Lamb’s Chapel), only four outside groups have been identified as meeting in the school, and Good News is, seemingly, the only one whose instruction follows immediately on the conclusion of the official schoolday. In fact, the temporal and physical continuity of Good News’s meetings with the regular school routine seems to be the whole point of using the school. When meetings were held in a community church, 8 or 10 children attended; after the school became the site, the number went up three-fold.

NOTES AND QUESTIONS

1. Can courts draw the sorts of lines suggested by Justice Stevens?

2. Excluding worship services? Justice Souter observes that if the real character of Good News Club meetings were acknowledged, the case would “stand for the remarkable proposition that any public school opened for civic meetings must be opened for use as a church, synagogue, or mosque.” Is this a problem? A divided panel of the Second Circuit has concluded that, despite Good News Club, the exclusion of “religious worship services” under a school community use policy879 is constitutional because it is content—rather than viewpoint—based and motivated by reasonable concerns that a contrary policy would violate the Establishment Clause. Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 650 F.3d 30 (2d Cir.), cert. denied, 132 S. Ct. 816 (2011); accord Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891 (9th Cir. 2007), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); see also Bronx Household of Faith vs. Board of Educ. of City of N.Y., 750 F.3d 184 (2d. Cir 2014) (rejecting, in a later iteration of the Bronx Household litigation, the church’s argument that its exclusion violated both the Free Exercise and Establishment Clauses), cert. denied, 135 S. Ct. 1730 (2015); but cf. Badger Catholic, Inc. v. Walsh, 620 F.3d 775 (7th Cir. 2010) (striking down university’s policy of refusing to allocate student activity funds for “worship, proselytizing, and religious instruction”). For documentation that use of public school buildings for religious worship services is increasingly common and an argument that cases like Bronx Household and Glover are inconsistent with the Supreme Court’s equal access cases, see Mark W. Cordes, Schools, Worship, and the First Amendment, 48 Suffolk U. L. Rev. 9 (2015).

What about the converse: schools holding graduation ceremonies in church buildings? The leading case holds that one district’s practice of holding graduation ceremonies in the “proselytizing environment” of a church violated the Establishment Clause. Doe v. Elmbrook Sch. Dist., 687 F.3d 840 (7th Cir. 2012) (en banc). The court noted, however, that its ruling turned on the facts of the case and that it had not laid down a categorical rule prohibiting government use of church-owned facilities.

3. When are separationist concerns enough to justify speech restrictions? In equal access cases, the school district defendants have usually excluded religious speech because of concerns that allowing such speech might violate the Establishment Clause. The approach taken in Good News Club does not leave school officials much room to guess wrong. As a predictive matter, the case may suggest that for this Court, religion is always a viewpoint and that religious viewpoints can be excluded only to prevent a genuine Establishment Clause violation. (Justice Thomas leaves it open in Good News Club whether even an actual Establishment Clause violation could justify viewpoint discrimination.) Establishment Clause “worries” or “concerns” are clearly not enough.

In contrast, many instances of student religious speech during the school day are governed by Hazelwood and can be restricted for legitimate pedagogical purposes. In that context, courts frequently allow the restriction of religious speech because of Establishment Clause concerns without insisting on proof of an actual Establishment Clause violation. See, e.g., Curry ex rel. Curry v. Hensiner, 513 F.3d 570, 579 (6th Cir. 2008) (school’s desire to avoid “subjecting young children to an unsolicited religious promotional message that might conflict with what they are taught at home qualifies as a valid educational purpose”). These contrasting approaches to whether separationist worries are enough make critical the question of whether speech is school sponsored or is taking place in a limited public forum. They also highlight what is at stake in the debate about whether Hazelwood prohibits viewpoint discrimination. See Section A of Chapter 8.

880

As an illustration of the latter point, consider Peck v. Baldwinsville Central School District, 426 F.3d 617 (2d Cir. 2005). In Peck, a study unit on the environment taught to kindergarten students included an assignment to create a poster showing what students had learned about how to save the earth. The plaintiff-student first produced one poster consisting entirely of a picture of Jesus, religious images, and religious slogans. When his teacher rejected the first poster as unresponsive to the assignment, the student created a second poster that mixed a figure of Jesus on the left, a church with a cross in the center, and pictures of people picking up trash and recycling, along with images of nature, on the right. The school displayed the second poster at an environmental assembly but folded under the more religious parts of the poster. The parents then sued. When the case reached the Second Circuit, the court ruled that the speech contained in the environmental poster was governed by Hazelwood. The court also noted that the school’s proffered reasons for censoring the poster—it was not responsive to the assignment, there was concern that the student’s mother had made the poster, and the audience at the assembly might have believed that the environmental unit had included a religious message if the poster had been fully displayed—were all legitimate pedagogical concerns. Nevertheless, the court remanded the case for further proceedings by concluding that Hazelwood forbids viewpoint discrimination and that the school’s actions could be seen as viewpoint discrimination that might well prove unjustified after further factual development.

4. Distribution of Religious Materials at School

Many cases have involved the distribution of written materials (e.g., leaflets, flyers, pamphlets) within the school. The cases vary in result and approach and thus are difficult to summarize, but the following points generally hold good.

With respect to materials distribution by outside groups, public forum doctrine provides the dominant lens. The cases generally hold that a school need not allow any outside groups to use the schools as a conduit for disseminating information, but if a decision is made to open up a “materials distribution forum” for secular groups and materials, religious groups and materials must be given access on the same terms. Groups who use the materials distribution forum can be subjected to reasonable time, place, and manner restrictions concerning the distribution of materials. A school may not give preferential or sole access to outside groups wishing to distribute copies of the Bible, see Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556 (8th Cir. 2009), but it may allow groups to distribute Bibles if other groups are also given the same opportunities to distribute their materials, see Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274 (4th Cir. 1998).

More recent cases tend to conclude that schools could not ban student-to-student distribution of material across the board, see, e.g., Clark v. Dallas Indep. Sch. Dist., 806 F. Supp. 116 (N.D. Tex. 1992), though some older cases suggest otherwise. Where distribution of religious materials is deemed part of a curricular activity, Hazelwood governs and religious speech may be restricted for legitimate pedagogical reasons. See, e.g., Curry, 513 F.3d at 570 (school could restrict881 elementary school student distribution of candy canes with religious messages during a simulated marketplace exercise). If the materials are distributed outside the context of school sponsorship, courts take a dim view of content-based restrictions on religious materials. See, e.g., Morgan v. Swanson, 659 F.3d 359, 410-412 (5th Cir. 2011) (en banc) (school acted unconstitutionally in restricting elementary school students’ distribution of religious materials where the distribution could not be viewed as school-sponsored). Content-neutral time, place, and manner restrictions are, or at least should be, a different matter. While some courts continue to apply Tinker to content-neutral restrictions, see Raker v. Frederick Cnty. Pub. Schs., 470 F. Supp. 2d 634 (W.D. Va. 2007), most courts appear to recognize that the more relaxed standards governing time, place, and manner restrictions should govern content-neutral rules restricting student literature distribution to certain places or times of day, see, e.g., Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740 (5th Cir. 2009) (time, place, and manner restrictions must be content-neutral, “narrowly tailored to serve a significant government interest,” and “leave open ample alternative channels for communication”).

PROBLEM

Every year, Prospector High School in Hampton, California, sponsors Diversity Week, a series of panel discussions intended to promote dialogue among the student body about the importance of appreciating racial, cultural, religious, and sexual orientation diversities. This tradition appears to be a useful one, for student relations at Prospector High School have been relatively harmonious for some time. The panels are typically organized by the Student Council, and they take place during mandatory assemblies immediately following lunch period. Panel members are drawn entirely from the student body. This year the Student Council recruited students to participate by posting flyers that read:

Are you interested in being on a panel for Diversity Week during the week of March 14 to March 18? A mandatory informational meeting will be held on Friday, February 22nd in room C310 at lunch. Please come if you would like to participate. We hope to see you there!

Student Council members worried that they would not have time to put together the entire Diversity Week program, and asked whether other student organizations might be willing to organize one of the panels. The only organization to volunteer was the Gay Straight Alliance (GSA), which agreed to put together a panel entitled “Appreciating Diversity in Sexual Orientation.”

When February 22 arrived, students interested in the sexual orientation panel gathered in one corner of room C310 to discuss the panel. Most of the interested students were members of GSA who wanted to share their experiences of heterosexual intolerance and/or plead for greater understanding and appreciation. One student, however, had a very different perspective. Becky Johnson, president of Prospectors for Christ, said she would like to participate in the panel to present what she termed the “Christian perspective” on tolerance882 of homosexuality. Martin Morris, president of GSA and thus lead organizer of the panel, was not so sure this was a good idea. “We sort of have a theme,” he said, “and I’m not sure that you are going to fit into it. Why don’t you go over and ask about participating in the panel on religious diversity?” Johnson replied that the GSA panel was the one she wanted to be on. Morris then suggested that Johnson could participate as long as she cleared her remarks in advance with him. Becky replied, “I’m not really sure you’re allowed to do that, but I’ll go along. I have nothing to hide. What I want to say is short and simple.”

Three days before the panel was scheduled to take place, Becky submitted the following text to GSA as the basis of her planned remarks at the panel:

I asked to be on this panel to express the Christian point of view about diversity of sexual orientation. I would like to begin by saying that like the other Prospectors for Christ, I support diversity and Diversity Week in most respects. But there’s one thing I don’t like about Diversity Week, and that is the way that racial diversity, religious diversity, and sexual diversity are lumped together and compared as if they are the same things. Race is not strictly an idea. It is something you are born with; something that doesn’t change throughout your life. It involves no choice or action. On the other hand, your religion is your choice. Sexuality implies an action, and there are people who have been straight, then gay, then straight again. I completely and wholeheartedly support racial diversity, but I can’t accept religious and sexual ideas or actions that are wrong. I am not saying that gay people should be mistreated—the ultimate judgment is for God, not for any of us. I’m only saying that if students at Prospector High really care about diversity, there ought to be room in a program like this for people like me who believe that homosexuality is sinful.

Morris, the GSA president, discussed the text with other GSA members. While they all agreed that Johnson’s planned remarks were “not as bad as they had feared,” they still thought her message was entirely out of place on their panel. Morris decided to consult with Principal Skinner. After reviewing Johnson’s draft remarks, Principal Skinner agreed that Johnson should not be allowed to participate in the GSA panel because she would “undercut the message of Diversity Week.” None of the other panel speakers had their remarks screened by Principal Skinner or any other school official.

The GSA panel went forward with all the student speakers who had volunteered to participate except Becky Johnson. All speakers talked about the need to end discrimination based on sexual orientation and exhorted students to free themselves from homophobic assumptions. One speaker spoke of religious intolerance as a particularly worrisome source of antigay sentiment.

Becky Johnson’s parents sued the school district for violating Becky’s free speech rights by not allowing her to participate in the GSA panel. How should a court rule on their claim?

1 George Washington, Farewell Address, available at http://avalon.law.yale.edu/18th_century/washing.asp (last visited May 13, 2016).

2 In a concurring opinion, Justice Douglas described the practices surrounding the Regents’ prayer as follows: “The prayer is said upon the commencement of the school day, immediately following the pledge of allegiance to the flag. The prayer is said aloud in the presence of a teacher, who either leads the recitation or selects a student to do so. No student, however, is compelled to take part.…As I read this regulation, a child is free to stand or not stand, to recite or not recite, without fear of reprisal or even comment by the teacher or any other school official.”—Ed.

3 Alabama Code §16-1-20 (Supp. 1984) reads as follows:

At the commencement of the first class each day in the first through the sixth grades in all public schools, the teacher in charge of the room in which each such class is held shall announce that a period of silence, not to exceed one minute in duration, shall be observed for meditation, and during any such period silence shall be maintained and no activities engaged in.

Appellees have abandoned any claim that §16-1-20 is unconstitutional.

4 Alabama Code §16-1-20.1 (Supp. 1984) provides:

At the commencement of the first class of each day in all grades in all public schools the teacher in charge of the room in which each class is held may announce that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer, and during any such period no other activities shall be engaged in.

5 Alabama Code §16-1-20.2 (Supp. 1984) provides:

From henceforth, any teacher or professor in any public educational institution within the state of Alabama, recognizing that the Lord God is one, at the beginning of any homeroom or any class, may pray, may lead willing students in prayer, or may lead the willing students in the following prayer to God:

Almighty God, You alone are our God. We acknowledge You as the Creator and Supreme Judge of the world. May Your justice, Your truth, and Your peace abound this day in the hearts of our countrymen, in the counsels of our government, in the sanctity of our homes and in the classrooms of our schools in the name of our Lord. Amen.

6 Appellant Governor George C. Wallace now argues that §16-1-20.1 “is best understood as a permissible accommodation of religion” and that viewed even in terms of the Lemon test, the “statute conforms to acceptable constitutional criteria.” The United States, appearing as amicus curiae in support of the appellants, candidly acknowledges that “it is unlikely that in most contexts a strong Free Exercise claim could be made that time for personal prayer must be set aside during the school day.”

7 We have taken the liberty of moving the location of this paragraph to make the edit more readable.—Ed.

8 Private schools are subject to state regulation and may receive significant state funding. These facts have been held insufficient to convert private schools into state actors. Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

9 If you have not read section D.2 on the web, the “Catch-22” construal of the Establishment Clause requires that the state pervasively monitor instruction in religious schools to ensure that public monies are not diverted to religious use, then concludes that the monitoring itself constitutes a forbidden “entanglement” under Lemon.

10 More than one of these changes was evidenced in many of the decisions. The use of a case to illustrate a theme below does not mean that the other themes played no role in that decision.

11 In other contexts, lower courts and the Supreme Court itself have continued to refer to Lemon as a three-part test. See, e.g., McCreary Cnty., Ky. v. ACLU, 545 U.S. 844, 859 (2005).

12 Chapter 2 of the Education Consolidation and Improvement Act of 1981, as amended, 20 U.S.C. §§7301-7373 (1994).

13 Justice Thomas’s plurality opinion and Justice Souter’s dissent agreed that in reality the safeguards were wholly inadequate to prevent diversion and that a nontrivial amount of diversion had occurred. The point did not matter to the plurality because for them, actual diversion was constitutionally irrelevant. For Justice Souter, it meant the program ought to have been struck down.

14 Some school choice advocates likely believe in the educational superiority of private schools and see school choice as part of a larger program to privatize education: if families are given the choice, it is thought that private schools will drive public schools “out of business” by delivering a better product. Many studies have compared the educational performance of different kinds of schools; some of these studies are discussed in Chapter 13. Here, let it suffice to say that the results are mixed and that advocates tend to emphasize the studies that support their preferred conclusions. For an interesting argument that education ought to be privatized or “disestablished” for the same reasons that religion was disestablished, see Michael W. McConnell, Education Disestablishment: Why Democratic Values Are Ill-Served by Democratic Control of Schooling, in Moral and Political Education (Stephen Macedo & Yael Tamir eds., 2002).

15 Justice Souter suggests the program is not “neutral” because program students cannot spend scholarship vouchers at traditional public schools. This objection is mistaken: Public schools in Cleveland already receive $7,097 in public funding per pupil—$4,167 of which is attributable to the State. Program students who receive tutoring aid and remain enrolled in traditional public schools therefore direct almost twice as much state funding to their chosen school as do program students who receive a scholarship and attend a private school.

16 In some earlier cases, “private choice” was sensibly understood to go beyond the mere formalism of path, to ensure that aid was neither systemic nor predestined to go to religious uses. Witters, for example, had a virtually unlimited choice among professional training schools, only a few of which were religious; and Zobrest was simply one recipient who chose to use a government-funded interpreter at a religious school over a secular school, either of which was open to him. But recent decisions seem to have stripped away any substantive bite, as “private choice” apparently means only that government aid follows individuals to religious schools.

17 When parents were surveyed as to their motives for enrolling their children in the voucher program, 96.4% cited a better education than available in the public schools, and 95% said their children’s safety. When asked specifically in one study to identify the most important factor in selecting among participating private schools, 60% of parents mentioned academic quality, teacher quality, or the substance of what is taught (presumably secular); only 15% mentioned the religious affiliation of the school as even a consideration.

18 The National Conference of State Legislatures maintains an extensive website with information about school choice policy options, including vouchers. School Vouchers, http://www.ncsl.org/research/education/school-choice-vouchers.aspx (last visited May12, 2016).

19 National Conference of State Legislatures, Scholarship Tax Credits, http://www.ncsl.org/research/education/school-choice-scholarship-tax-credits.aspx (last visited May 12, 2016).

20 The Blaine Amendment is covered in Section D.1.a.ii of this chapter (available via weblink). In a nutshell, this was a post–Civil War proposed amendment to the federal Constitution designed to ban the use of public money to support private (i.e., Catholic) schools. The federal amendment failed, but in its wake many states adopted similar provisions in their own constitutions.

21 A significant number of Amish children do leave the Old Order. Professor Hostetler notes that “[t]he loss of members is very limited in some Amish districts and considerable in others.” J. Hostetler, Amish Society 226 (1968). In one Pennsylvania church, he observed a defection rate of 30%. Id. Rates up to 50% have been reported by others.

22 The observation of Justice Heffernan, dissenting below, that the principal opinion in his court portrayed the Amish as leading a life of “idyllic agrarianism,” is equally applicable to the majority opinion in this Court. So, too, is his observation that such a portrayal rests on a “mythological basis.” Professor Hostetler has noted that “[d]rinking among the youth is common in all the large Amish settlements.” Amish Society 283. Moreover, “[i]t would appear that among the Amish the rate of suicide is just as high, if not higher, than for the nation.” Id. at 300. These are not traits peculiar to the Amish, of course. The point is that the Amish are not people set apart and different.

23 The Supreme Court describes the “tailoring” aspect of strict scrutiny using a variety of closely related formulations: means must be “essential,” “necessary,” “narrowly tailored,” “least restrictive.” In many contexts, it is doubtful whether the Court attaches significance to the choice of one phrase rather than another to describe the idea that it will require a close fit between the government’s means and ends. The formulations in the Sherbert-Yoder case law vary, but the Supreme Court seems (at least in hindsight) to have settled on “narrow tailoring” as the standard language in describing the Sherbert-Yoder “test.” See the discussion of RFRA, infra at pp. 845-846 nn. 24 and 25, to understand why this matters.

24 The key section of RFRA, 42 U.S.C. §2000bb-1 (2006), provides:

(a) In general

Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

25 Hobby Lobby, 134 S. Ct. at 2761 n.3 (emphasizing that in RFRA Congress imposed a “least restrictive means” test that was not used in the Sherbert-Yoder case law). Moreover, the Hobby Lobby Court arguably read the substantial burden requirement to impose lesser demands on religious claimants than had the pre-Smith case law. Id. at 2775-2779. Specifically, the Court appeared to reason that judges have no room to second-guess a claimant’s representation that the religious costs of complying with secular law are substantial. See Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. & Gender 35, 80-82 (2015).

26 University students are, of course, young adults. They are less impressionable than younger students and should be able to appreciate that the university’s policy is one of neutrality toward religion. See Tilton v. Richardson, 403 U.S. 672, 685-86 (1971).

27 The Court noted elsewhere that “[b]ecause Milford has not raised a valid Establishment Clause claim, we do not address the question whether such a claim could excuse Milford’s viewpoint discrimination.”—Ed.

883

Much of education law deals with issues beyond what is taught in school. From school funding and integration to student rights and discipline, legal issues permeate almost every aspect of a school district’s functioning. This chapter, however, moves into the classrooms and school libraries themselves, looking at who gets to decide what students will actually study at school. In particular, it explores the allocation of power among three key stakeholders in creating and controlling the curriculum: the school board, individual classroom teachers, and parents. Are there any limits to the decisions that a school board can make in choosing textbooks, curricula, and library books? What happens if a classroom teacher wants to deviate from the path that the school board has laid down? And what if parents object to aspects of the curriculum, wanting to shield their children from material that they find objectionable or inappropriate? As you will see, battles over creation and control of the curriculum can implicate a range of overlapping (and sometimes competing) constitutional interests: free speech rights of teachers, substantive due process rights of parents to control their children’s upbringing; free exercise rights of parents and students; Establishment Clause rights of parents and students; and, not least, First Amendment rights of students to receive ideas and information.

This chapter includes three main sections. First, it looks at the very broad power of school boards to make decisions regarding curricula, textbooks, and library holdings, and the few limitations that courts have imposed here. Next, it turns to teachers and explores whether they have constitutionally protected rights (apart from any job security they may have through state tenure rules) to adopt teaching methods and materials of their own choosing. Here, you will see that the combination of school boards’ broad power and a recent Supreme Court decision contracting the scope of government employees’ speech rights means that teachers’ constitutional protection is currently very limited in the classroom. Finally, the chapter turns to one of the most controversial issues in education: what power parents should have to “opt out”—or, more precisely, opt their children out—of various pieces of the public school curriculum with which they disagree. Courts have repeatedly held that parents have very little power here, beyond their power to remove their children from the public school884 altogether. As you read this chapter, consider whether courts are striking the right balance in protecting the rights and prerogatives of the different stakeholders here, or whether they should be doing more to curb school boards’ discretion.

A. THE SCHOOL BOARD’S POWER TO CREATE THE CURRICULUM

1. Library Books

Only one Supreme Court case has addressed a school board’s power to make curriculum-related decisions for the school district—and it did not even produce a clear majority opinion. Board of Education v. Pico, addressing the constitutional limits on a school board’s decision to remove controversial books from the school library, produced a 4-4-1 split. Four Justices on the Pico Court agreed that removing such books for viewpoint-discriminatory reasons—that is, out of dislike for the ideas contained within them—would violate the First Amendment. But four other Justices disagreed, and one Justice declined to reach the issue. Given the lack of a majority holding, Pico does not stand as binding precedent. That said, lower courts still look to Pico for guidance, and it is often the starting point in controversies over school boards’ pedagogical decisions.

Board of Education, Island Trees Union Free School District No. 26 v. Pico

457 U.S. 853 (1982)

Justice Brennan announced the judgment of the Court and delivered an opinion, in which Justice Marshall and Justice Stevens joined, and in which Justice Blackmun joined except for Part II-A-(1).

The principal question presented is whether the First Amendment imposes limitations upon the exercise by a local school board of its discretion to remove library books from high school and junior high school libraries.

Petitioners are the Board of Education of the Island Trees Union Free School District No. 26, in New York, and Richard Ahrens, Frank Martin, Christina Fasulo, Patrick Hughes, Richard Melchers, Richard Michaels, and Louis Nessim. When this suit was brought, Ahrens was the President of the Board, Martin was the Vice President, and the remaining petitioners were Board members. The Board is a state agency charged with responsibility for the operation and administration of the public schools within the Island Trees School District, including885 the Island Trees High School and Island Trees Memorial Junior High School. Respondents are Steven Pico, Jacqueline Gold, Glenn Yarris, Russell Rieger, and Paul Sochinski. When this suit was brought, Pico, Gold, Yarris, and Rieger were students at the High School, and Sochinski was a student at the Junior High School.

In September 1975, petitioners Ahrens, Martin, and Hughes attended a conference sponsored by Parents of New York United (PONYU), a politically conservative organization of parents concerned about education legislation in the State of New York. At the conference these petitioners obtained lists of books described by Ahrens as “objectionable,” and by Martin as “improper fare for school students.” It was later determined that the High School library contained nine of the listed books, and that another listed book was in the Junior High School library.¹ In February 1976, at a meeting with the Superintendent of Schools and the Principals of the High School and Junior High School, the Board gave an “unofficial direction” that the listed books be removed from the library shelves and delivered to the Board’s offices, so that Board members could read them. When this directive was carried out, it became publicized, and the Board issued a press release justifying its action. It characterized the removed books as “anti-American, anti-Christian, anti-[Semitic], and just plain filthy,” and concluded that “[it] is our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.”

A short time later, the Board appointed a “Book Review Committee,” consisting of four Island Trees parents and four members of the Island Trees schools staff, to read the listed books and to recommend to the Board whether the books should be retained, taking into account the books’ “educational suitability,” “good taste,” “relevance,” and “appropriateness to age and grade level.” In July, the Committee made its final report to the Board, recommending that five of the listed books be retained² and that two others be removed from the school libraries.³ As for the remaining four books, the Committee could not agree on two,⁴ took no position on one,⁵ and recommended that the last book be made available to students only with parental approval.⁶ The Board substantially rejected the Committee’s report later that month, deciding that only one book should be returned to the High School library without restriction,⁷ that another886 should be made available subject to parental approval,⁸ but that the remaining nine books should “be removed from elementary and secondary libraries and [from] use in the curriculum.” The Board gave no reasons for rejecting the recommendations of the Committee that it had appointed.

Respondents reacted to the Board’s decision by bringing the present action under 42 U.S.C. §1983 in the United States District Court for the Eastern District of New York. They alleged that petitioners had “ordered the removal of the books from school libraries and proscribed their use in the curriculum because particular passages in the books offended their social, political and moral tastes and not because the books, taken as a whole, were lacking in educational value.”

Respondents claimed that the Board’s actions denied them their rights under the First Amendment. They asked the court for a declaration that the Board’s actions were unconstitutional, and for preliminary and permanent injunctive relief ordering the Board to return the nine books to the school libraries and to refrain from interfering with the use of those books in the schools’ curricula.

The District Court granted summary judgment in favor of petitioners. A three-judge panel of the United States Court of Appeals for the Second Circuit reversed the judgment of the District Court, and remanded the action for a trial on respondents’ allegations. We granted certiorari.

We emphasize at the outset the limited nature of the substantive question presented by the case before us. [A]s this case is presented to us, it does not involve textbooks, or indeed any books that Island Trees students would be required to read. Respondents do not seek in this Court to impose limitations upon their school Board’s discretion to prescribe the curricula of the Island Trees schools. On the contrary, the only books at issue in this case are library books, books that by their nature are optional rather than required reading. Our adjudication of the present case thus does not intrude into the classroom, or into the compulsory courses taught there. Furthermore, even as to library books, the action before us does not involve the acquisition of books. Respondents have not sought to compel their school Board to add to the school library shelves any books that students desire to read. Rather, the only action challenged in this case is the removal from school libraries of books originally placed there by the school authorities, or without objection from them.

The substantive question before us is still further constrained by the procedural posture of this case. Petitioners were granted summary judgment by the District Court. The Court of Appeals reversed that judgment, and remanded the action for a trial on the merits of respondents’ claims. We can reverse the judgment of the Court of Appeals, and grant petitioners’ request for reinstatement of the summary judgment in their favor, only if we determine that “there is no genuine issue as to any material fact,” and that petitioners are “entitled to a judgment as a matter of law.”

887

In sum, the issue before us in this case is a narrow one, both substantively and procedurally. It may best be restated as two distinct questions. First, does the First Amendment impose any limitations upon the discretion of petitioners to remove library books from the Island Trees High School and Junior High School? Second, if so, do the affidavits and other evidentiary materials before the District Court, construed most favorably to respondents, raise a genuine issue of fact whether petitioners might have exceeded those limitations?

(1)

The Court has long recognized that local school boards have broad discretion in the management of school affairs. We have also acknowledged that public schools are vitally important “in the preparation of individuals for participation as citizens,” and as vehicles for “inculcating fundamental values necessary to the maintenance of a democratic political system.” We are therefore in full agreement with petitioners that local school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.”

At the same time, however, we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment. In West Virginia Board of Education v. Barnette, we held that under the First Amendment a student in a public school could not be compelled to salute the flag. We reasoned: “Boards of Education…have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”

Later cases have consistently followed this rationale. Thus Epperson invalidated a State’s anti-evolution statute as violative of the Establishment Clause, and reaffirmed the duty of federal courts “to apply the First Amendment’s mandate in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry.” And Tinker held that a local school board had infringed the free speech rights of high school and junior high school students by suspending them from school for wearing black armbands in class as a protest against the Government’s policy in Vietnam.

Of course, courts should not “intervene in the resolution of conflicts which arise in the daily operation of school systems” unless “basic constitutional values” are “directly and sharply [implicated]” in those conflicts. But we think that the First Amendment rights of students may be directly and sharply implicated by the removal of books from the shelves of a school library. Our precedents have focused “not only on the role of the First Amendment in888 fostering individual self-expression but also on its role in affording the public access to discussion, debate, and the dissemination of information and ideas.” And we have recognized that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” In keeping with this principle, we have held that in a variety of contexts “the Constitution protects the right to receive information and ideas.” This right is an inherent corollary of the rights of free speech and press that are explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them: “The right of freedom of speech and press…embraces the right to distribute literature, and necessarily protects the right to receive it.” “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”

More importantly, the right to receive ideas is a necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom. Madison admonished us: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.” 9 Writings of James Madison 103.

In sum, just as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active and effective participation in the pluralistic, often contentious society in which they will soon be adult members. Of course all First Amendment rights accorded to students must be construed “in light of the special characteristics of the school environment.” Tinker. But the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.

Petitioners emphasize the inculcative function of secondary education, and argue that they must be allowed unfettered discretion to “transmit community values” through the Island Trees schools. But that sweeping claim overlooks the unique role of the school library. It appears from the record that use of the Island Trees school libraries is completely voluntary on the part of students. Their selection of books from these libraries is entirely a matter of free choice; the libraries afford them an opportunity at self-education and individual enrichment that is wholly optional. Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners’ reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway.

(2)

Petitioners rightly possess significant discretion to determine the content of their school libraries. But that discretion may not be exercised in a narrowly partisan or political manner. If a Democratic school board, motivated by party889 affiliation, ordered the removal of all books written by or in favor of Republicans, few would doubt that the order violated the constitutional rights of the students denied access to those books. The same conclusion would surely apply if an all-white school board, motivated by racial animus, decided to remove all books authored by blacks or advocating racial equality and integration. Our Constitution does not permit the official suppression of ideas. Thus whether petitioners’ removal of books from their school libraries denied respondents their First Amendment rights depends upon the motivation behind petitioners’ actions. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed, and if this intent was the decisive factor in petitioners’ decision,⁹ then petitioners have exercised their discretion in violation of the Constitution. To permit such intentions to control official actions would be to encourage the precise sort of officially prescribed orthodoxy unequivocally condemned in Barnette. On the other hand, respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because those books were pervasively vulgar. And again, respondents concede that if it were demonstrated that the removal decision was based solely upon the “educational suitability” of the books in question, then their removal would be “perfectly permissible.” In other words, in respondents’ view such motivations, if decisive of petitioners’ actions, would not carry the danger of an official suppression of ideas, and thus would not violate respondents’ First Amendment rights.

As noted earlier, nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools. Because we are concerned in this case with the suppression of ideas, our holding today affects only the discretion to remove books. In brief, we hold that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Barnette. Such purposes stand inescapably condemned by our precedents.

We now turn to the remaining question presented by this case: Do the evidentiary materials that were before the District Court, when construed most favorably to respondents, raise a genuine issue of material fact whether petitioners exceeded constitutional limitations in exercising their discretion to remove the books from the school libraries? We conclude that the materials do raise such a question, which forecloses summary judgment in favor of petitioners.

The evidence plainly does not foreclose the possibility that petitioners’ decision to remove the books rested decisively upon disagreement with890 constitutionally protected ideas in those books, or upon a desire on petitioners’ part to impose upon the students of the Island Trees High School and Junior High School a political orthodoxy to which petitioners and their constituents adhered. Of course, some of the evidence before the District Court might lead a finder of fact to accept petitioners’ claim that their removal decision was based upon constitutionally valid concerns. But that evidence at most creates a genuine issue of material fact on the critical question of the credibility of petitioners’ justifications for their decision.

Justice Blackmun, concurring in part and concurring in the judgment.

While I agree with much in today’s plurality opinion, and while I accept the standard laid down by the plurality to guide proceedings on remand, I write separately because I have a somewhat different perspective on the nature of the First Amendment right involved.

[T]he principle involved here is both narrower and more basic than the “right to receive information” identified by the plurality. I do not suggest that the State has any affirmative obligation to provide students with information or ideas, something that may well be associated with a “right to receive.” And I do not believe, as the plurality suggests, that the right at issue here is somehow associated with the peculiar nature of the school library; if schools may be used to inculcate ideas, surely libraries may play a role in that process. Instead, I suggest that certain forms of state discrimination between ideas are improper. In particular, our precedents command the conclusion that the State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.

As I see it, then, the question in this case is how to make the delicate accommodation between the limited constitutional restriction that I think is imposed by the First Amendment, and the necessarily broad state authority to regulate education. In starker terms, we must reconcile the schools’ “inculcative” function with the First Amendment’s bar on “prescriptions of orthodoxy.”

In my view, we strike a proper balance here by holding that school officials may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved. It does not seem radical to suggest that state action calculated to suppress novel ideas or concepts is fundamentally antithetical to the values of the First Amendment. At a minimum, allowing a school board to engage in such conduct hardly teaches children to respect the diversity of ideas that is fundamental to the American system. In this context, then, the school board must “be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” and that the board had891 something in mind in addition to the suppression of partisan or political views it did not share.

Justice White, concurring in the judgment.

[The Court of Appeals concluded] that there was a material issue of fact that precluded summary judgment sought by petitioners. The unresolved factual issue, as I understand it, is the reason or reasons underlying the school board’s removal of the books. I am not inclined to disagree with the Court of Appeals on such a fact-bound issue and hence concur in the judgment of affirmance. Presumably this will result in a trial and the making of a full record and findings on the critical issues.

Chief Justice Burger, with whom Justice Powell, Justice Rehnquist, and Justice O’Connor join, dissenting.

I agree with the fundamental proposition that “students do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ ” Here, however, no restraints of any kind are placed on the students. They are free to read the books in question, which are available at public libraries and bookstores; they are free to discuss them in the classroom or elsewhere. Despite this absence of any direct external control on the students’ ability to express themselves, the plurality suggests that there is a new First Amendment “entitlement” to have access to particular books in a school library.

If, as we have held, schools may legitimately be used as vehicles for “inculcating fundamental values necessary to the maintenance of a democratic political system,” school authorities must have broad discretion to fulfill that obligation. Presumably all activity within a primary or secondary school involves the conveyance of information and at least an implied approval of the worth of that information. How are “fundamental values” to be inculcated except by having school boards make content-based decisions about the appropriateness of retaining materials in the school library and curriculum. In order to fulfill its function, an elected school board must express its views on the subjects which are taught to its students. In doing so those elected officials express the views of their community; they may err, of course, and the voters may remove them. It is a startling erosion of the very idea of democratic government to have this Court arrogate to itself the power the plurality asserts today.

The plurality concludes that under the Constitution school boards cannot choose to retain or dispense with books if their discretion is exercised in a “narrowly partisan or political manner.” The plurality concedes that permissible factors are whether the books are “pervasively vulgar,” or educationally unsuitable. “Educational suitability,” however, is a standardless phrase. This conclusion will undoubtedly be drawn in many—if not most—instances because of892 the decisionmaker’s content-based judgment that the ideas contained in the book or the idea expressed from the author’s method of communication are inappropriate for teenage pupils.

The plurality also tells us that a book may be removed from a school library if it is “pervasively vulgar.” But why must the vulgarity be “pervasive” to be offensive? Vulgarity might be concentrated in a single poem or a single chapter or a single page, yet still be inappropriate.

Further, there is no guidance whatsoever as to what constitutes “political” factors. This Court has previously recognized that public education involves an area of broad public policy and “ ‘[goes] to the heart of representative government.’ ” As such, virtually all educational decisions necessarily involve “political” determinations.

What the plurality views as valid reasons for removing a book at their core involve partisan judgments. Ultimately the federal courts will be the judge of whether the motivation for book removal was “valid” or “reasonable.” Undoubtedly the validity of many book removals will ultimately turn on a judge’s evaluation of the books. Discretion must be used, and the appropriate body to exercise that discretion is the local elected school board, not judges.

NOTES AND QUESTIONS

1. Given that Pico did not produce a majority opinion, what status does it have? Lower courts have not treated Pico as binding law, although they do look to it for guidance, as you will see below.

2. In her landmark work Democratic Education, political philosopher Amy Gutmann argues that a guiding principle of public education in a democratic state should be nonrepression, explaining that “[t]he principle of nonrepression presents the state, and any group within it, from using education to restrict rational deliberation of competing conceptions of the good life and good society.” Amy Gutmann, Democratic Education 44 (1987). Gutmann further argues, with specific reference to Pico:

Decisions by local school boards to ban books from public-school libraries are among the most direct and open violations of the principle of nonrepression. Even if the school board’s intention is to lay the foundation of human decency and patriotism by banning books, it should not attempt to achieve this end by shielding students from understanding why some people use indecent language, hold radical political views, and break laws. Such understanding constitutes an important part of what it means to be an informed citizen.…

[T]he crucial test of the legitimacy—as distinguished from the correctness or the wisdom—of a policy of book banning by local school boards is whether the policy is nonrepressive.…Nonrepression prohibits educational authorities from shielding students from reasonable (not correct or uncontroversial) political views represented by the adult citizenry or from censoring reasonable challenges to those views.

Id. at 97-98. How would you distinguish the “test” proposed by Gutmann from the standard articulated by the Pico plurality? Which do you think is a better approach?

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3. How does the Pico plurality characterize the First Amendment interest implicated here, and to whom does the right belong?

4. Why did Justice Blackmun write separately? How did his view of the First Amendment interest here diverge from the Pico plurality?

5. How does the Pico plurality differentiate between the school curriculum and the school library? What does it suggest should be the standard for school boards’ pure curricular decisions, and why?

6. Why do you think the plurality emphasized that “nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools”? What are the relevant distinctions between a decision to remove books and a decision not to add them?

7. How persuasive do you find the dissent’s argument that the Pico plurality’s standard is inherently flawed? Do you think that the plurality’s line is workable? Would there be a better line? Or should federal courts stay out of this entire area? Circle back to these questions after you have read ACLU v. Miami-Dade County School Board, in which judges on the Eleventh Circuit diverged sharply in their application of Pico.

American Civil Liberties Union of Florida v. Miami-Dade County School Board

557 F.3d 1177 (11th Cir. 2009)

Carnes, Circuit Judge:

Juan Amador was outraged when he read the inaccurate portrayal of life in Cuba that was contained in a book on the shelves of the library where his young daughter went to school. He asked that the book be removed from the shelves, explaining that, “[a]s a former political prisoner from Cuba, I find the material to be untruthful.” After a lengthy review process, the School Board removed the book.

Illustrating something akin to Newton’s Third Law of Motion, the action the School Board took at Amador’s request caused an equal and opposite reaction from another parent and two organizations. They promptly sued the Board. Agreeing with their claims that the School Board’s action violated the First Amendment, a federal district court enjoined the Board from removing the book. This is the Board’s appeal.

The Miami-Dade County Public School District has forty-nine copies of the book, A Visit to Cuba, and its Spanish-language counterpart, !Vamos a Cuba!, spread out among thirty-three of its elementary and middle schools. The Vamos a Cuba book is part of a series of books which “targets readers between the ages of 4 to 8 years old, and [is] written to provide basic information about what life is like for a child” in various countries. The “A Visit to” series also includes books about Puerto Rico, Costa Rica, Colombia, Brazil, Cambodia, England, Egypt, the United Kingdom, Canada, Vietnam, Wales, Australia,894 China, Japan, Scotland, Mexico, Italy, Israel, Ireland, India, Greece, Germany, and France. The school district has at least one copy of those other “A Visit to” books in some of its elementary and middle school libraries. The “A Visit to” series is located in the libraries’ nonfiction (history, geography, cultures) section.

The books in the “A Visit to” series all follow the same “formulaic format.” They offer the young reader “superficial introductions to geography, people, customs, language, and daily life.” “The large-print texts are accompanied by color photos of varying quality and relevance.” For example, the thirty-two pages of Vamos a Cuba contain general statements about Cuba’s geography (“Cuba is a country in the Caribbean Sea, south of Florida.”), people (“Most Cubans live in cities.”), customs (“Cubans dress to keep cool in the hot weather.”), language (“Most people in Cuba speak Spanish.”), and daily life (“People in Cuba eat, work, and go to school like you do.”).

The library at Marjory Stoneman Douglas Elementary School is one of the thirty-three district libraries with Vamos a Cuba in its collection. On April 4, 2006, Juan Amador, the father of a young girl at Douglas Elementary, filed a “Citizen’s Request for Reconsideration of Media” to have Vamos a Cuba removed from the library at his daughter’s school. On the request form Amador identified himself as a former political prisoner and complained that the material in the book was not truthful and “portrays a life in Cuba that does not exist.” Amador also wrote that, “I believe [Vamos a Cuba] aims to create an illusion and distort reality.” He recommended that the book be replaced by one “that truly reflects the plight of the Cuban people of the past and present.”

The school district has a four-tiered administrative procedure for reviewing citizen requests to remove books from the district’s libraries. In this case Amador followed the administrative review process from start to finish. Because he was not satisfied with the principal’s explanation about Vamos a Cuba, he submitted a formal request to the School Committee to remove the book from the Douglas Elementary library. The School Committee considered the book in light of the district’s fifteen written criteria for evaluating books for its school library collections. Some of the eight committee members believed that Vamos a Cuba was “factually accurate,” “apolitical,” and “appropriate for the age group,” while one member felt that the “author could have better written and researched the topic,” and another was convinced that the book did not meet the district’s criteria for accuracy. All eight members checked the “meets criteria” box for the categories of “educational significance” and “appropriateness.” The School Committee’s vote was seven to one in favor of retaining Vamos a Cuba in the Douglas Elementary library.

Amador appealed the School Committee’s decision to retain the book in the Douglas Elementary library to the superintendent, who submitted the appeal to the District Committee. The seventeen-member District Committee decided to evaluate Vamos a Cuba based on what it determined to be the three most important of the fifteen criteria: educational significance, appropriateness, and accuracy. The District Committee, by a vote of 15 to 1, recommended that the superintendent retain Vamos a Cuba in the Douglas Elementary library. (One member resigned before the vote, stating that “he had concerns regarding the ability of the committee to render an objective decision.”)

895

The superintendent adopted the District Committee’s recommendation and informed Amador of his decision to leave Vamos a Cuba on the library shelves. Amador appealed the superintendent’s decision to the School Board the same day and asked that the Board take up his appeal at its next meeting. It did so. In its April 18, 2006 meeting, the Board heard comments from guest speakers in the community and considered the issue of removing Vamos a Cuba from the libraries. In its June 14, 2006 meeting, Board members spoke about their views on the subject, and a majority of the Board voted for removal of Vamos a Cuba.

At that June 14 meeting, after Amador spoke, Board chairman Augustin Barrera began the discussion for the Board. He stated that the “issues before us, to me are quite clear, it’s issues of inaccuracies, it’s issues of omissions, because sometimes the words that are not said are more powerful than those words which are said, and sometimes there’s generalities, which [is] how this book is portrayed.”

Board member Ana Rivas Logan spoke next. She said that “from the very first day” she reviewed Vamos a Cuba she had “found the book extremely offensive, inaccurate, full of omissions.”

Board vice-chair Perla Tabares Hantman explained that she did not view the issue to remove the Vamos a Cuba book as “one of censorship or about banning a book.” “I view this,” she continued, “as one of accuracy and truth.”

Board member Evelyn Langlieb Greer explained that the “beauty” of the administrative procedure for requesting that a book be removed from the library was that “it takes the emotion and the politics out” of the decision-making process, “and substitutes professional judgment.” She explained:

Once a book is in a system, and has enjoyed the consent of the administrative, of being in the system, it can only be legitimately removed in this country based on serious, material, irrevocable and clear inaccuracies and biases.

The 22 professional educators who reviewed this book have affirmatively determined that that is not the case, therefore, we are here today in essentially a political process.…

Board member Martin Karp explained that “the author’s intent in Vamos a Cuba was not to say anything about the politics of the country, and the harsh realities that exist there, but sometimes, as our Chair said, when you do not say anything or avoid addressing real problems, you say a lot.”

Finally Board member Robert Ingram spoke. He suggested that if some of his colleagues on the School Board did not vote to remove Vamos a Cuba from the libraries, “they can’t walk out of here. If they don’t vote for it, they can’t go home, they might find a bomb under their automobiles, and I feel that’s a shame to be put upon a school system that we are trying to train our children to have equality and justice.” Board member Ingram continued: “I can’t vote my conscience without feeling threatened. That should never happen in this community anymore.”

After all Board members who wished to speak (eight of the nine) had done so, Board member Logan made a motion. Her motion was to reject the superintendent’s decision to retain the Vamos a Cuba book in the Douglas Elementary library and to replace the entire “A Visit to” series in the district’s libraries “with updated books that are more actual to real life in these countries.” Logan stated896 that the “findings” for her motion were “that the book is inaccurate, it has omissions.” Board member Bolonas seconded the motion. The motion was approved by a vote of 6 to 3.

About a week later the American Civil Liberties Union of Florida, Inc. and the Miami-Dade County Student Government Association filed a complaint, pursuant to 42 U.S.C. §1983, in the Southern District of Florida against the School Board and the superintendent seeking declaratory and injunctive relief. The ACLU and the student government association alleged that the defendants had violated their members’ First Amendment rights to freedom of speech.

[The district] court found that…the plaintiffs were likely to succeed. [It issued] a preliminary injunction enjoining the School Board from enforcing its removal order, and it also ordered that any of the books in the “A Visit to” series that were already removed be returned to the libraries.

The defendants [appealed].

The parties disagree about the contours of the legal standard we should apply to decide whether it is likely that the plaintiffs will succeed on their claim that the School Board’s decision to remove the Vamos a Cuba book from all the school district’s libraries violated their First Amendment rights. The plaintiffs contend, and the district court agreed, that we should apply the test enunciated by a plurality of the Supreme Court in Pico.

The School Board in our case equates its decision about which books to remove from school library shelves with the decision the principal made in Hazelwood about which articles to remove from the school newspaper. Both decisions, it asserts, relate to control over curriculum.

The argument against applying the Hazelwood standard here is that this is not a school newspaper situation, and the speech at issue does not form part of a course of study in a school’s curriculum. This is a school library book case. The question of what standard applies to school library book removal decisions is unresolved. And for reasons that will become apparent later we have no need to resolve it here.

Even if the plaintiffs won the argument about the applicable standard and got the one of their dreams, the furthest we could possibly go in their favor is the standard that failed to attract a majority in the Pico case: school officials may not remove books from library shelves “simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” That is the standard the plaintiffs want.

Even assuming that standard applies, however, the plaintiffs still lose if the School Board removed Vamos a Cuba not for those prohibited reasons but instead, as the Board insists, for legitimate pedagogical reasons such as concerns about the accuracy of the book. Whatever else it prohibits, the First Amendment does not forbid a school board from removing a book because it contains factual897 inaccuracies, whether they be of commission or omission. There is no constitutional right to have books containing misstatements of objective facts shelved in a school library.

The plaintiffs do not dispute that the School Board may remove a book because it is educationally unsuitable. Nor do they dispute that one of the Board’s written criteria for determining the educational suitability of a nonfiction book is factual accuracy. What they dispute is the Board’s actual motive for ordering Vamos a Cuba removed from the library shelves. They contend that the Board acted to suppress the viewpoint expressed in Vamos a Cuba. The viewpoint the plaintiffs ascribe to the book, and describe as content neutral and apolitical, is one in which the people of Cuba are portrayed as eating, working, and going to school like students in the Miami-Dade County School District do. The Board’s conclusion that Vamos a Cuba is inaccurate is, according to plaintiffs, nothing but a pretense for enforcing the politically orthodox view—especially prevalent in South Florida—that opposes the Castro regime. The Board responds that it decided to remove the Vamos a Cuba books because they were “inaccurate and rife with omissions in their portrayal of life in Cuba,” and that reason “does not constitute viewpoint discrimination.”

The district court agreed with the plaintiffs.

Ordinarily, we review district court factfindings only for clear error, but First Amendment issues are not ordinary. Where the First Amendment is involved our review of the district court’s findings of “constitutional facts,” as distinguished from ordinary historical facts, is de novo.

We will review for clear error only the district court’s findings of ordinary historical facts. Those are facts about the who, what, where, when, and how of the controversy—what the School Board did, when and how it acted, what various members of the Board said, and so forth. Those facts, already set out earlier in this opinion, are largely undisputed.

By contrast, under the assumptions about the law that we have made for purposes of deciding this case, we must determine the “why” facts. Those are the core constitutional facts that involve the reasons the School Board took the challenged action—its intent, or more accurately, its motive for removing copies of the Vamos a Cuba book from the school libraries.

The dissent believes that “viewpoint discrimination was the decisive factor in [the Board’s] motivation.” Our review of the record leads us to the conclusion that under the Pico standard we are assuming applies, the Board members did not “remove books from school library shelves simply because they dislike[d] the ideas contained in those books and [sought] by their removal to prescribe what shall be orthodox in politics…or other matters of opinion.” The record shows that the Board did not simply dislike the ideas in the Vamos a Cuba book. Instead, everyone, including both sides’ experts, agreed that the book contained factual inaccuracies. Factual accuracy in a non-fiction book is not a “matter[] of opinion.” Under the Pico standard we are applying, the Board did not act based on an unconstitutional motive.

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Even one of the three Board members who voted to retain Vamos a Cuba in the district’s libraries acknowledged that there were factual errors in the book. The Board’s formal order stated Vamos a Cuba was being removed because the Board had found that “the book is inaccurate and contains several omissions.” The order required that Vamos a Cuba “be replaced, throughout the school district, with a more accurate set of books that is more representative of actual life” in Cuba.

The consistency throughout the process of the inaccuracy complaints and the consistency of the explanations of the Board members who voted to remove the book evidence that the Board’s motive was what it stated—that the book was ordered removed from school libraries because it is full of factual errors. And there is more evidence.

A fact of great significance in deciding whether the School Board was motivated to remove Vamos a Cuba because of inaccuracies is that the book indisputably does contain inaccuracies. It is inaccurate because of what it says. It is inaccurate because of what it does not say.

Page 29 of the English version of Vamos a Cuba states: “In one valley in Cuba, there are large, colorful paintings on some rocks. Inside the rocks are caves. The caves have paintings made by people who lived in Cuba about 1,000 years ago.”¹⁰ The book includes a picture of a rock painting that depicts people and animals in red, blue, green, and purple. It is undisputed, however, that the rock painting in the picture was not created “by people who lived in Cuba about 1,000 years ago” as the book indicates. Instead, the painting, “called Mural de la Prehistoria, which is located in the Valle de Vinales in Pinar del Rio,” was done in the 1960s.

On page 25 of Vamos a Cuba, the book states: “Cuba’s beaches are good for swimming and boating. People like to dive and fish. There are also rowboat and sailboat races.” The truth, according to the uncontradicted evidence in the record, is that the traditional Cuban rowboat and sailboat races were abolished a half century ago.

The third sentence in the book tells the children of this country that: “People in Cuba eat, work, and go to school like you do.” It is simply not true that people in Cuba “eat, work, and go to school” the same way that American children do.

As for eating, unlike the situation in this country, in Cuba food is rationed by the government. It has been for forty-six years. The book fails to mention that. As for the Cuban people “working like you do,” that is not true for children or adults. In Cuba there is “little private work,” and “it [is] a crime to exercise private initiative or to have private practice of a profession.” “Practically everyone must work for the government.” From the sixth grade on, students must go to the countryside for a period of 45 days to do unpaid agricultural work. Moreover, “from the senior high899 level, all must go to the countryside to do unpaid agricultural work, on a permanent basis, alternating half day in the fields and half in the classroom.” Refusal to do agricultural work may result in expulsion from school. Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Cuba: Country Reports on Human Rights Practices 2006 (2007). The book does not mention that.

The book’s assertion that people in Cuba go to school “like you do” is false, too. In addition to agricultural field work being a mandatory part of school for Cuban children, the Human Rights Report found that elementary and secondary students receive “obligatory ideological indoctrination.”

What Vamos a Cuba fails to mention, and takes great pains to cover up with its “like you do” misrepresentations, is that the people of Cuba live in a state of subjugation to a totalitarian communist regime with all that involves.

[T]he district court characterized the Board’s removal of Vamos a Cuba as book “banning.” That is a faulty foundation. The Board did not ban any book. The Board removed from its own school libraries a book that the Board had purchased for those libraries with Board funds. It did not prohibit anyone else from owning, possessing, or reading the book. The overwrought rhetoric about book banning has no place here.

Wilson, Circuit Judge, dissenting:

Having read the book and independently examined the entire record, I agree with the district court that the School Board’s claim that Vamos a Cuba is grossly inaccurate is simply a pretense for viewpoint suppression, rather than the genuine reason for its removal. The record supports the district court’s determination that the book was not removed for a legitimate pedagogical reason.

The majority declines to determine whether the standard set forth in Hazelwood or the standard set forth in Pico applies to school library book removal decisions, finding that “even if the plaintiffs…got the [standard] of their dreams,” the test articulated by a plurality of the Supreme Court Pico, the plaintiffs would still lose because the School Board removed Vamos a Cuba for “legitimate pedagogical reasons.” I also do not determine which standard applies, as I find that even under the more lenient standard the Court set forth in Hazelwood, the plaintiffs demonstrated a substantial likelihood of success on the merits.

Under the more lenient standard in Hazelwood, a school board may regulate expression related to curricular materials so long as the school board’s motivation is “reasonably related to legitimate pedagogical concerns.” This standard does not, however, permit a school board to engage in viewpoint discrimination.

The record provides palpable support for the district court’s conclusion that School Board members banned the book not because of inaccuracies per se but because the book failed to make a negative political statement about contemporary Cuba.

Several School Board members referred to their Cuban birth and their experience as exiles as explanations for why they found the book offensive. Their criticism is grounded in a portrayal of Cuba as normal and apolitical.

900

Some members of the Cuban American community attended the School Board meetings and demonstrated their intolerance to messages that fail to conform to their personal experiences. One member of the DMRC, Ronald Bilbao, described the environment at one of the meetings, as “very scary.” The Superintendent of the Miami-Dade County School System also noted the intense political pressure from the community.

Here, the School Board, a politically elected body, was faced with intense community pressure. The evidence also shows that personal feelings were not always put aside; indeed, School Board member Hantman explained that her decision to ban the book was grounded “firmly in [her] commitment to stand with the Cuban American community, [of] which [she is] a very proud member.” She further stated that she “would not be doing her job as a Cuban American” if she did not vote to remove the book.

The record contains observations by educators, most of whom were themselves employed by the School Board, who consistently assured the Board that whatever omissions and inaccuracies there were in the book were not significant enough to remove the book for a legitimate pedagogical reason. Certainly a School Board is a political body that must serve its constituents. However, the School Board also took an oath to uphold the Constitution.

A. The School Board’s Proffered Inaccuracies and Omissions

The majority finds that “[a] fact of great significance in deciding whether the School Board was motivated to remove Vamos a Cuba because of inaccuracies is that the book indisputably does contain inaccuracies.” My independent view of the record, however, fully supports the district court’s determination that these inaccuracies were merely post hoc rationalizations for the book’s removal—“plausible but disingenuous justifications.”

[T]he omissions about which the plaintiff complained, if included, were found to be developmentally inappropriate and would render the book educationally unsuitable. The book was written for children ages four to eight.

The omitted information also falls outside the scope of a superficial geography book. Vamos a Cuba is simply part of an apolitical geography series. Its overall purpose is “to offer very basic information to young children about the way of life in another country.”

B. A Dangerous Precedent

The majority concludes that the book is “inaccurate because of what it does not say,” in that it leaves out the horrors of the Castro regime. Opening the door to the majority’s interpretation of “inaccuracy” would lead to a host of challenges. The sanctioned banning of a simple book like this would be logically supported by a finding that age-appropriate, politically neutral texts are rendered “inaccurate” by their omission of information that would express a particular political viewpoint.

I am also troubled by the majority’s discussion about how the “book was not being banned…[but rather] removed from a school’s library shelves.” The majority argues that because the book was removed from a school’s library901 shelves, but could still be found in other public libraries in the area and was available for purchase, the booked was not banned. I disagree.

[U]nder the majority’s definition—“where a government or its officials forbid or prohibit others from having a book,” a school board could never ban a book. It has the authority to remove books only within its school system. If it does this, according to the majority, it has not banned the book, as it could only be “banned” if people cannot have the book altogether. Such a definition limits the word’s application to almost nothing.

Appendix [text of Vamos a Cuba]

(1) Cuba—“Cuba is a country in the Caribbean Sea, south of Florida. It is one big island with some smaller ones nearby. People in Cuba eat, work, and go to school like you do. Life in Cuba is also unique.” (2) Land—“Cuba has flat plains that are used for farmland. There are also sandy beaches and coral reefs. The weather in Cuba is very warm. There are mountains in Cuba, too. The mountains are covered with forests.” (3) Landmarks—“The capital of Cuba is Havana. The Capitol building in Havana looks like the United States Capitol building in Washington, D.C. Morro Castle is an old fort. It was built by people from Spain. It was used 400 years ago to protect Havana from pirates.” (4) Homes—“Most Cubans live in cities. The cities are crowded, so many live in apartment buildings. There are some beautiful old buildings. There are new buildings, too. Most homes in the country are simple. Some are made of wood from palm trees. They have roofs of palm leaves or grasses.” (5) Food—“White rice is the most common food in Cuba. Sometimes it is mixed with black beans. Chicken with rice is popular, too. Many kinds of fruits grow in Cuba. Bananas, pineapples, oranges, and mangoes are favorites. Yucca is a plant that people eat as a vegetable.” (6) Clothes—“Cubans dress to keep cool in the hot weather. Many children wear shorts and T-shirts. For special festivals, men wear white pants and white shirts. Women wear colorful ruffled dresses.” (7) Work—“Some Cubans work in factories that make cigars or sugar. There are also factories where people make cloth, shoes, paper, and farm tools. In the country, there are large farms. The workers there grow sugarcane and tobacco. There are also farms for vegetables, such as lettuce, onions, and carrots.” (8) Transportation—“There are not many cars in Cuba. In the cities, some people drive old cars from the United States. Most Cubans travel by bus. On country roads, people use animals to pull wagons. Animals are also used to help farmers in their fields.” (9) Language—“Most people in Cuba speak Spanish. This is because Cuba was settled by people from Spain. Spanish uses some of the same letters as English. There are also some extra letters in the Spanish alphabet.” (10) School—“Cuban children go to school between the ages of five and fourteen. They wear uniforms to school. There are different colored uniforms for different ages. In school, children learn math, reading, and history. All school children do some kind of work during their school day. Some children work in gardens. Older children may work in factories.” (11) Free Time—“Baseball is Cuba’s national sport. Cuba won the gold medal in baseball in the 1996 Olympic Games. Cuba’s beaches are good for swimming and boating. People like to dive902 and fish. There are also rowboats and sailboat races. (12) Celebrations—“Cuba’s biggest celebration is called Carnival. It is held on July 26. People dance and sing at this festival. Some people who settled in Cuba were Roman Catholics. Other people who lived in Cuba were from Africa. So some Cuban celebrations mix African and Catholic beliefs.” (13) The Arts—“Cuban music mixes sounds from Africa and Spain. Musicians use guitars, drums, and gourds to make music and a beat. Dances from Cuba are popular around the world. In one valley in Cuba, there are large colorful paintings on some rocks. Inside the rocks are caves. The caves have paintings made by people who lived in Cuba about 1,000 years ago.”

NOTES AND QUESTIONS

1. Which opinion did you find more persuasive here?

2. Does the divergence between the ACLU majority and dissent make you rethink your opinion about whether Pico articulated a workable standard, in suggesting that the key question is whether the decision makers were motivated by concerns about educational suitability or instead by disapproval of a particular viewpoint? If so, is there a rule that would make more sense?

3. Despite the origins of Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), presented in Chapter 8 as a student speech case, its standard—whether the school’s action was “reasonably related to a legitimate pedagogical concern”—sometimes migrates into cases involving curriculum-related disputes, as in ACLU v. Miami-Dade County School Board. The extent to which Hazelwood, if applied, might yield a different outcome than Pico largely depends on whether Hazelwood’s standard is viewed as requiring viewpoint neutrality (a question on which there is currently a circuit split). If Hazelwood requires viewpoint neutrality, then the Pico and Hazelwood standards are actually very similar: They both require the school’s decision to have stemmed from concerns about educational suitability, rather than a desire to shield students from a particular viewpoint. Indeed, given that the Eleventh Circuit had previously held that Hazelwood requires viewpoint neutrality, it is not surprising that the ACLU majority and dissent both agreed that Pico and Hazelwood cut the same way (with the majority thinking that the plaintiffs should lose under both cases, and the dissent thinking that the plaintiffs should win under either of them). By contrast, if Hazelwood permits viewpoint discrimination, then—to the extent that it is used in curriculum-related disputes—it may sometimes yield different results from Pico.

4. The ACLU majority and dissent diverged over whether the school district’s action should actually be considered a book “banning.” Whom did you find more convincing on this point?

PROBLEM

Patricia Parker, the parent of a seventh-grader at West York Middle School, contacted the school librarian to express concern that the Harry Potter books were available for students to check out of the library. She explained that based903 on her review of the books, they dealt with “witchcraft” and “the occult.” Pursuant to official school policies, the school district convened a Library Committee to consider the matter, consisting of the school principal, the librarian, a seventh-grade teacher, and a parent representative. The Library Committee unanimously voted to keep the book in circulation without any restrictions, and passed this recommendation on to the West York School Board.

The board, however, voted 3-2 to restrict access to the Harry Potter series. Under the new regime, students need signed permission slips from their parents to check out the Harry Potter books, which are kept with the librarian at the circulation desk rather than being available on the shelves for students to browse. One member voting in favor of restricting access explained that he objected to a book that would expose students to the “witchcraft religion.” Another member reiterated that the books “teach about witchcraft.” The third member stated that regardless of how she felt about the books, the controversy demonstrated to her that it was best to leave the decision to parents through a permission slip regime, as opposed to letting students browse and check out the books on their own. The other two members said that they deferred to the Library Committee’s recommendation and would thus vote to leave the books in full circulation.

After the new regime was implemented, the parents of one student, Alison Adams, contacted you, a noted education lawyer, to see whether they have a valid claim on her behalf. Alison and her friends are avid Harry Potter readers and are very upset about this new policy. What advice would you give them about the strength of their potential lawsuit?

2. Pure Curricular Decisions

Both of the above cases deal with a school board’s removal of library books. But what about school board decisions regarding what gets taught in the classroom itself? Here, lower courts have taken to heart Pico’s suggestion that the school board members “might well defend their claim of absolute discretion in matters of curriculum.” Moreover, as the next case illustrates, some have moved toward the approach that such curricular decisions reflect pure “government speech.”

Chiras v. Miller

432 F.3d 606 (5th Cir. 2005)

W. Eugene Davis, Circuit Judge:

Appellants Chiras, a textbook author, and Rodriguez, a high school student, challenge the district court’s Rule 12(b)(6) dismissal of their action alleging that the Texas State Board of Education violated the Free Speech Clause of the First Amendment when it refused to approve Chiras’ environmental science textbook for state funding. Because we find that the Appellants do not state a violation of the First Amendment, we affirm the district court’s dismissal of their suit.

904

The Texas State Board of Education (the “SBOE” or “Board”) is a body created by the state legislature and given a wide degree of authority over education policy in Texas, including the authority to “develop and update a long range plan for public education,” “establish curriculum and graduation requirements,” and “adopt and purchase or license textbooks as provided by Chapter 31 [of the Texas Education Code] and adopt rules required by that Chapter.” The Board is composed of fifteen members elected from districts across Texas in biennial general elections.

The SBOE reviews and adopts the textbooks it deems appropriate for each course. For each subject and grade level, the State Board of Education is required to adopt two lists of textbooks: one list includes “conforming” textbooks, the other includes “nonconforming” textbooks. Conforming textbooks contain material covering each element of the essential knowledge and skills of the subject and grade level as determined by the Board, while nonconforming textbooks contain material covering at least half, but not all, of those elements. Both conforming and nonconforming textbooks must be free from errors and meet the physical requirements adopted by the Board. The Board accepts or rejects each textbook proposed for placement on one of the two lists by a majority vote.

The review process for a textbook begins with submission of the textbook by the publisher. The textbook is examined by a review panel, which evaluates the textbook according to criteria promulgated by the SBOE, and submits its evaluation to the Texas Education Agency Commissioner. Based on the opinion of the review panel, the Commissioner then prepares a recommendation to the Board that the textbook under consideration be placed on the conforming list, placed on the nonconforming list, or rejected. The Board then solicits commentary from the public on the textbook, both in written form and in hearings. Finally, the Board votes on each textbook to either place the book on the conforming or nonconforming list, or to reject the book.

The SBOE has established four conditions under which a textbook can be rejected. Specifically, the Board may reject any textbook for:

(1) failure to meet essential knowledge and skills specified in the proclamation. In determining the percentage of elements of the essential knowledge and skill covered by instructional materials, each performance description shall count as an independent element of the essential knowledge and skills of the subject;

(2) failure to meet established manufacturing standards and specifications recognized by the SBOE;

(3) failure to correct errors of fact; or

(4) content that clearly conflicts with the stated purpose of the Texas Education Code, §28.002(h).

Section 28.002(h) of the Texas Education Code in turn provides:

The State Board of Education and each school district shall foster the continuation of the tradition of teaching United States and Texas history and the free enterprise system in905 regular subject matter and in reading courses and in the adoption of textbooks. A primary purpose of the public school curriculum is to prepare thoughtful, active citizens who understand the importance of patriotism and can function productively in a free enterprise society with appreciation for the basic democratic values of our state and national heritage.

Each year, once the SBOE formulates its lists of conforming and nonconforming textbooks, the lists are circulated to individual school districts. School districts are required to select textbooks for use in “foundation curriculum” subjects from either the conforming or nonconforming list. School districts may select a book not on either list, however, for use in “enrichment curriculum” subjects. If a school district selects a textbook from the conforming or nonconforming list, the SBOE pays the cost of supplying copies of the textbook, subject to certain limitations. If, however, a school district selects a textbook not on either of the lists adopted by the Board, the Board pays only 70% of the cost of the textbooks, and the local school district is responsible for the remainder. School districts may also seek a waiver from the Texas Education Agency Commissioner to obtain full state funding for a rejected textbook.

In May of 1999, the SBOE solicited bids from publishers for textbooks to be used in regular and advanced environmental science classes in Texas public high school. In response, Jones and Bartlett Publishers submitted the sixth edition of Environmental Science: Creating a Sustainable Future, authored by Appellant Daniel Chiras.

In accordance with the Board’s administrative regulations, Chiras’ book was submitted to a review panel composed of professors at Texas A&M University. The review panel initially identified some potential factual errors in Chiras’ book, and so notified the Commissioner in its initial report. Jones & Bartlett agreed to make corrections to some statements identified by the review panel, and provided justification for others. The review panel accepted Jones & Bartlett’s revisions and reported to the Commissioner that no additional corrections were necessary. The Commissioner then placed Environmental Science on the proposed list of nonconforming textbooks to be submitted for public comment. After reviewing the public comments and Jones & Bartlett’s responses, the Commissioner recommended in his final report issued on October 26, 2001, that the SBOE adopt Chiras’ book. Environmental Science was one of only three textbooks recommended for use in regular environmental science courses, and the only textbook recommended for advanced courses.

Appellants allege that after the Commissioner issued his report, two “conservative think-tank organizations”—the Texas Public Policy Foundation (“TPPF”) and Citizens for a Sound Economy (“CSE”)—requested that the SBOE permit additional public comment on the proposed textbooks prior to the scheduled vote. The SBOE agreed, and scheduled a public hearing for November 8, 2001, the day before the final vote on the proposed textbooks was scheduled. Appellants also allege that Defendant-Appellees McLeroy, Shore, and Thornton—all members of the Board—worked with TPPF and906 CSE to “develop a strategy for rejecting Chiras’ book.” After the public hearing, at which members of TPPF and CSE spoke in opposition to approving Environmental Science, the Board voted not to adopt Chiras’ book by a vote of 10-5.

The SBOE issued no formal findings or reasons for its decision to reject Environmental Science. However, Appellants identify three comments by Board members which they allege demonstrate an unconstitutional motivation to reject the textbook. First, Appellee McLeroy wrote an article published on the CSE website in which he suggested that the SBOE rejected Chiras’ textbook because it was based on a “false premise” and that the textbook’s “claim that the root cause of environmental problems is economic growth is simply wrong.” Second, the Austin American-Statesman reported that Appellee Shore told the newspaper that “the oil and gas industry should be consulted” regarding passage of proposed environmental science textbooks, because “we [the oil and gas industry] always get a raw deal.” Third, the Dallas Morning News reported that Appellee Bradley told the newspaper that the Board was “seeing a change in the attitude of publishers. They are starting to work with conservative groups and textbook critics…who more accurately reflect the viewpoint of most Texans. I really think the pendulum is swinging back to a more traditional, conservative value system in our schools.”

Following the Board’s decision to reject Chiras’ textbook, Appellants filed this action on the theory that the Board’s decision constituted impermissible viewpoint discrimination in violation of the Free Speech Clause of the First Amendment. Appellees moved to dismiss, and the district court granted that motion after concluding that school officials may permissibly discriminate on the basis of viewpoint when selecting materials for inclusion in the public school curriculum.

The district court reasoned that the selection and use of a textbook by the public schools is neither pure government speech nor pure private speech, but rather private speech which bears the imprimatur of the government. As a result, the district court applied the forum analysis articulated by the Supreme Court in Hazelwood. Applying the rule of Hazelwood, the district court concluded that Hazelwood did not require the Board’s decision to be viewpoint-neutral, and that the motivations for the Board’s decision alleged by Appellants were “reasonably related to legitimate pedagogical concerns.” This appeal followed.

III

Appellants argue that the district court erred in concluding both that Hazelwood does not require the SBOE’s decision to be viewpoint-neutral and that the Board’s reasons for its decision were “reasonably related to legitimate pedagogical concerns.” Appellees argue, however, that the selection and use of textbooks in the public schools is government speech, not a forum, and not subject to the First Amendment rights of either textbook authors or students.

907

The first question we must answer is whether Appellant Chiras alleged a violation of his First Amendment rights as a textbook author by the SBOE when it declined to place his textbook on the conforming or nonconforming list of textbooks for use in public school classrooms. Although the Supreme Court has not answered this question directly, the Court has given us ample guidance to allow us to comfortably answer in the negative.

Any discussion of the constitutionality of a state’s decision to reject a textbook for its public schools must begin with the recognition that the states enjoy broad discretionary powers in the field of public education. Central among these discretionary powers is the authority to establish public school curricula which accomplishes the states’ educational objectives.

[W]hen the SBOE devises the state curriculum for Texas and selects the textbook with which teachers will teach to the students, it is the state speaking, and not the textbook author. Designing the curriculum and selecting textbooks is a core function of the SBOE. It is necessary for the Board to exercise editorial judgment over the content of the instructional materials it selects for use in the public school classrooms, and the exercise of that discretion will necessarily reflect the viewpoint of the Board members. The purpose of the Board is not to establish a forum for the expression of the views the various authors of textbooks and other instructional materials might want to interject into the classroom. Further, the Board has a statutory obligation under Texas law to exercise that discretion in order to promote the state’s chosen message through the Board’s educational policy. As noted above, the Texas Education Code requires that the Board “foster the continuation of the tradition of teaching United States and Texas history and the free enterprise system in regular subject matter and in reading courses and in the adoption of textbooks.”

Because the Board must necessarily exercise its editorial discretion in selecting which private entities will convey the message the state selects, forum analysis and the viewpoint neutrality requirement are inapposite in this case. As a result, there is no forum to which Appellant Chiras can claim access as a textbook author.

Much of the Appellants’ claim depends on the argument that the SBOE’s decision in this case is subject to the restrictions developed by the Supreme Court in Hazelwood. Because we conclude that the Board’s selection of textbooks is government speech, Hazelwood does not apply, and there is no forum to which Chiras might assert a right of access under the First Amendment.

Our conclusion that the SBOE’s selection and use of textbooks in public school classrooms is government speech and not a forum for First Amendment908 purposes means only that Appellant Chiras may not assert a cognizable right of access to the approved list of textbooks. The conclusion that no forum exists in this case does not necessarily preclude, however, Appellant Rodriguez’s asserted right as a student to receive the information in Chiras’ textbook from the school. Therefore, the second question we must answer is whether Appellant Rodriguez alleged a violation by the SBOE of her First Amendment rights as a student when it declined to place Chiras’ textbook on the conforming or nonconforming lists.

Appellants’ primary claim to support for a student’s right to receive information is the Supreme Court’s decision in Pico. However, the Court carefully circumscribed that potential right, acknowledging that the case “does not involve textbooks” and that the Court’s conclusion “does not intrude into the classroom, or into the compulsory courses taught there.” Indeed, the Court readily admitted that a school board “might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values.” Because Pico addressed the removal of an optional book from the school library, not the selection of a textbook for use in the classroom, we decline to apply Pico to the facts before us.

NOTES AND QUESTIONS

1. In concluding that textbook selection represents “government speech,” the Fifth Circuit basically foreclosed the viability of any free speech–based challenges by textbook authors to a school district’s textbook choices. During the past few years, the Supreme Court has further developed the government speech doctrine, explaining that “the Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009). Most recently, the Supreme Court applied the government speech doctrine to specialty license plates, holding that Texas’s decisions about which specialty license plates to approve reflected pure government speech, such that the viewpoint-neutrality requirement did not apply. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015). As the government speech doctrine continues to evolve and expand, that will have important implications for challenges to school districts’ curricular and textbook choices. See generally Kristi L. Bowman, The Government Speech Doctrine and Speech in Schools, 48 Wake Forest L. Rev. 211 (2013).

2. As Chiras illustrates, challenges to curricular and textbook choices can come from different places. The notion that those choices reflect government speech is fatal to a textbook author’s challenge to them, but not necessarily fatal to a student’s challenge to them—since, as Chiras noted, such a challenge stems from a “right to receive information” theory. That said, those student challenges face a steep battle as well, given Pico’s explicit distinction between textbooks and library books. Indeed, several years after Chiras, the First Circuit joined the Fifth Circuit in ruling that Pico’s prohibition of viewpoint discrimination should be inapplicable to textbook and curricular selections, although it stopped short of909 explicitly holding that such selections amount to pure government speech. Griswold v. Driscoll, 616 F.3d 53 (1st Cir. 2010). That said, the Ninth Circuit recently held that students should be able to bring First Amendment challenges to a decision to remove material from the curriculum, and that the key test should be whether the decision was “reasonably related to legitimate pedagogical concerns.” Arce v. Douglas, 793 F.3d 968, 983 (9th Cir. 2015).

3. Remember that the Free Speech clause is not the only potential legal basis for a challenge to a school’s curricular or textbook decisions. Indeed, in Arce itself—discussed further below—the student plaintiffs (along with their teachers) also brought an Equal Protection challenge to the curricular change at issue.

4. States have different processes for textbook selection. A 2011 study found that of the 50 states, 29 states leave the decision to the individual school districts, 12 states produce recommended but not mandatory lists of textbooks (as does Texas), and 8 states have mandatory lists from which school districts must choose. Hawaii was not included in the study because it has only one school district, which is state-run. The study further found that “state book lists are less likely 1) in more educated states, where voters are better able to select the most appropriate textbook, 2) in states with smaller school districts, where voters are more involved in the schools, and 3) in states with stronger teacher unions, giving teachers more power in textbook selection.” Michelle Phillips, State Involvement in Limiting Textbook Choice by School Districts (Oct. 20, 2011), available at http://www.phillipsmichelle.files.wordpress.com/2011/11/phillipsjmpoct20.pdf. Which process do you think makes the most sense?

5. In 2010, Texas’s education standards again made news when the Texas State Board of Education approved new social studies standards after a divided board vote that largely tracked party lines. One such standard stated that students should “examine the reasons the Founding Fathers protected religious freedom in America and guaranteed its free exercise by saying that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, and compare and contrast this to the phrase ‘separation of church and state.’ ” Another such standard stated that students should “discuss the solvency of long term entitlements such as Social Security and Medicare.” Because textbook publishers hoping to have their books adopted in Texas use these standards as guidelines, and because Texas is such a large purchaser of books, some commentators predicted that these guidelines would have a ripple effect beyond Texas.

In addition to Free Speech claims, challenges to textbook and curricular decisions can come from other constitutional and statutory bases. The final cases in this section illustrate two such challenges, one from the Establishment Clause and one from the Equal Protection Clause combined with Title VI of the Civil Rights Act.

910

Edwards v. Aguillard

482 U.S. 578 (1987)

Justice Brennan delivered the opinion of the Court.

The question for decision is whether Louisiana’s “Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction” Act is facially invalid as violative of the Establishment Clause of the First Amendment.

The Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in “creation science.” No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught. The theories of evolution and creation science are statutorily defined as “the scientific evidences for [creation or evolution] and inferences from those scientific evidences.”

Appellees, who include parents of children attending Louisiana public schools, Louisiana teachers, and religious leaders, challenged the constitutionality of the Act in District Court, seeking an injunction and declaratory relief. Appellants, Louisiana officials charged with implementing the Act, defended on the ground that the purpose of the Act is to protect a legitimate secular interest, namely, academic freedom. Appellees attacked the Act as facially invalid because it violated the Establishment Clause and made a motion for summary judgment. The District Court granted the motion.

The Court of Appeals affirmed [and we] now affirm.

The Establishment Clause forbids the enactment of any law “respecting an establishment of religion.” The Court has applied a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute’s principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Lemon. State action violates the Establishment Clause if it fails to satisfy any of these prongs.

The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary. The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure. Therefore, in employing the three-pronged Lemon test, we must do so mindful911 of the particular concerns that arise in the context of public elementary and secondary schools.

III

Lemon’s first prong focuses on the purpose that animated adoption of the Act. “The purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion.”

In this case, appellants have identified no clear secular purpose for the Louisiana Act. True, the Act’s stated purpose is to protect academic freedom. This phrase might, in common parlance, be understood as referring to enhancing the freedom of teachers to teach what they will. The Court of Appeals, however, correctly concluded that the Act was not designed to further that goal. Even if “academic freedom” is read to mean “teaching all of the evidence” with respect to the origin of human beings, the Act does not further this purpose. The goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science.

While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham. It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum. During the legislative hearings, Senator Keith stated: “My preference would be that neither [creationism nor evolution] be taught.” Such a ban on teaching does not promote—indeed, it undermines—the provision of a comprehensive scientific education.

Furthermore, the goal of basic “fairness” is hardly furthered by the Act’s discriminatory preference for the teaching of creation science and against the teaching of evolution. While requiring that curriculum guides be developed for creation science, the Act says nothing of comparable guides for evolution. Similarly, resource services are supplied for creation science but not for evolution. Only “creation scientists” can serve on the panel that supplies the resource services. The Act forbids school boards to discriminate against anyone who “chooses to be a creation-scientist” or to teach “creationism,” but fails to protect those who choose to teach evolution or any other noncreation science theory, or who refuse to teach creation science.

If the Louisiana Legislature’s purpose was solely to maximize the comprehensiveness and effectiveness of science instruction, it would have encouraged the teaching of all scientific theories about the origins of humankind. But under the Act’s requirements, teachers who were once free to teach any and all facets of this subject are now unable to do so. Moreover, the Act fails even to ensure that creation science will be taught, but instead requires the teaching of this theory only when the theory of evolution is taught. Thus we agree with the Court of Appeals’ conclusion that the Act does not serve to protect academic freedom, but has the distinctly different purpose of discrediting “evolution by counterbalancing its teaching at every turn with the teaching of creationism.”

912

Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment.

NOTES AND QUESTIONS

1. Justice Scalia vigorously dissented in Edwards, describing it as “extraordinary to invalidate the Balanced Treatment Act for lack of a valid secular purpose.” He observed:

If one adopts the obviously intended meaning of the statutory term “academic freedom,” there is no basis whatever for concluding that the purpose they express is a “sham.” To the contrary, the Act pursues that purpose plainly and consistently. It requires that, whenever the subject of origins is covered, evolution be “taught as a theory, rather than as proven scientific fact” and that scientific evidence inconsistent with the theory of evolution (viz., “creation science”) be taught as well. Living up to its title of “Balanced Treatment for Creation-Science and Evolution-Science Act,” it treats the teaching of creation the same way. It does not mandate instruction in creation science, forbids teachers to present creation science as proven scientific fact,” and bans the teaching of creation science unless the theory is (to use the Court’s terminology) “discredit[ed]‘…at every turn’ ” with the teaching of evolution.”

2. Do you agree with the Edwards Court’s suggestion that its Establishment Clause analysis should take into consideration “the particular concerns that arise in the context of public elementary and secondary schools”? How did the Court characterize those concerns, and do you agree?

3. Questions about the teaching of evolution reemerged in Kitzmiller v. Dover Area School District, 400 F. Supp. 2d 707 (M.D. Pa. 2005). There, the Dover Area School Board passed a resolution that “[s]tudents will be made aware of gaps/problems in Darwin’s theory and of other theories of evolution including, but not limited to, intelligent design.” Pursuant to this resolution, teachers were required to read the following statement to students in ninth-grade biology class:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

Several Dover residents filed suit, alleging that the resolution violated the Establishment Clause. The district court agreed, applying the endorsement test913 and holding that Intelligent Design—which holds that “nature must have had an intelligent designer,” but does not explicitly state that the designer must have been God—is a form of creationism and that an objective Dover High School ninth grader would view the above statement “as a strong official endorsement of religion.” The court added that it did “not question that many of the leading advocates of ID [Intelligent Design] have bona bide and deeply held beliefs which drive their scholarly endeavors,” and that “ID should continue to be studied, debated, and discussed,” but that at present, it was “unconstitutional to teach ID as an alternative to evolution in a public school science classroom.”

Shortly after the decision came out, the school board members who had voted in favor of this policy lost to challengers who opposed the policy. The school board therefore did not appeal the ruling.

In addition to the Establishment Clause, antidiscrimination law—at both the constitutional and statutory levels—provides another potential source of challenges to textbook and curricular decisions. In the following case, a group of African American students challenged a district’s decision to include, in the freshman English class, two well-known literary works that repeatedly used racial slurs. Such conflicts, as you will see, pose difficult questions about how to balance the school district’s curricular autonomy with the various student interests involved.

Monteiro v. Tempe Union High School District

158 F.3d 1022 (9th Cir. 1998)

Reinhardt, Circuit Judge:

More and more frequently we are faced with cases in which two fundamental constitutional rights appear to be at odds. At such times, the job of federal judges is particularly difficult. Here, we confront a case presenting some elements of such a clash. The setting is a freshman English class in Tempe, Arizona, and the competing interests are the First Amendment rights of high school students to receive information or ideas—even when contained in literary works that may in today’s world appear to have racist overtones—and the rights of those same students to receive a public education that neither fosters nor acquiesces in a racially hostile environment.

Jane Doe was a student in a freshman English class at McClintock High School, which is part of the defendant Tempe Unified Union High School District (“School District”). The class’ required reading included two classic literary works—the novel The Adventures of Huckleberry Finn, by Mark Twain, and the short story A Rose for Emily, by William Faulkner. The complaint, brought on Doe’s behalf by her mother, Kathy Monteiro, alleged that each of these literary works “contains repeated use of the profane, insulting and racially derogatory term ‘nigger.’ ” It also alleged that neither work is a necessary component of a freshman English class and that none of the assignments in the curriculum refers to Caucasians in a derogatory manner.

According to the complaint, Doe and other similarly situated African-American students suffered psychological injuries and lost educational914 opportunities due to the required reading of the literary works. The complaint alleged that the School District had notice that Doe suffered these injuries but refused to offer a remedy other than to allow her to study alone in the library while the works were being discussed in class. It further alleged that the assignment of the literary works “created and contributed to a racially hostile educational environment,” including increased racial harassment by other students. Finally, it alleged that by its conduct the School District intentionally discriminated against Doe.

In her complaint, Monteiro sought a declaratory judgment, urging that the conduct of the School District violated Doe’s rights under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. She also requested a temporary and permanent injunction “prohibiting [the defendants] from committing similar unlawful acts in the future.” Monteiro did not, however, seek the exclusion of the literary works from a voluntary reading list or from inclusion in classroom discussions in which Jane Doe and other African American students [are] not held as a captive student audience or consigned to a separate and unequal educational environment.

Monteiro’s amended complaint alleges violations of the Equal Protection clause and Title VI of the Civil Rights Act of 1964. We have held that §1983 claims based on Equal Protection violations must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent. Under Title VI, however, we have required only that the complaint allege that the defendant is engaging in discrimination, although a showing of intent is necessary at trial.

Title VI provides in relevant part:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under and program or activity receiving Federal financial assistance.

A significant portion of the amended complaint, like the original, is based on the District’s assignment of Huckleberry Finn and A Rose for Emily as required reading and its subsequent refusal to remove them from the mandatory curriculum. We consider here whether the District’s conduct, the requirement that students read books that were determined by the appropriate school authorities to have educational value, and the refusal to remove those books from a mandatory curriculum, can form the basis for a complaint alleging discriminatory conduct under the Equal Protection Clause and Title VI.

We approach this question in light of a number of considerations. The first is the threat to First Amendment freedoms posed by efforts to prevent school boards from assigning the reading of literary works on the ground that individuals or groups may find the contents injurious or offensive. The second is the broad discretion afforded school boards to establish curricula they believe to be appropriate to the educational needs of their students. The third is the awareness that words can hurt, particularly915 in the case of children, and that words of a racist nature can hurt especially severely. The fourth is the knowledge that the historic prejudice against African-Americans that has existed in this nation since its inception has not yet been eradicated—by any means. The fifth is the requirement that young African-Americans, like all students, be afforded a public education free from racially discriminatory conduct on the part of educational authorities.

The Supreme Court has addressed on a number of occasions the balancing of a school’s discretion in determining educational matters with a students’ First Amendment rights. See, e.g., Hazelwood, Fraser, Pico. In doing so, the Court has recognized that school boards generally retain a broad discretion in managing school affairs, but it has also consistently noted that the school board’s discretion “in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment.”

Unlike the cases cited above, the case before us does not involve an action taken by a school board that arguably abridges the First Amendment rights of its students. Instead, it is a third party, a parent or a class of parents, that seeks to limit the educational materials the school officials may furnish to the students—and require them to read. Here we consider whether the school board’s interest in exercising its broad discretion in assigning the literary works in question and the students’ First Amendment interest in reading those works are collectively outweighed by the constitutional and statutory interests of students who assert that they are injured by the mandatory assignments. To resolve this controversy, we must consider whether the assignment of material deemed to have educational value by school authorities may in itself serve as the basis for an injunction by a court or an award of damages, when the challenge to the material is founded on its message or the language it employs.¹¹ In other words, may courts ban books or other literary works from school curricula on the basis of their content? We answer that question in the negative, even when the works are accused of being racist in whole or in part.

To begin with, Monteiro’s amended complaint—and other lawsuits threatening to attach civil liability on the basis of the assignment of a book—would severely restrict a student’s right to receive material that his school board or other educational authority determines to be of legitimate educational value. Certainly when a school board identifies information that it believes to be a useful part of a student’s education, that student has the right to receive the information.

Were the plaintiff to succeed in this litigation or even to succeed in forcing the defendants to engage in a trial over such well-established literary works, the threat of future litigation would inevitably lead many school districts to “buy their peace” by avoiding the use of books or other materials that express messages—or simply use terms—that could be argued to cause harm to a group of students.

It is not surprising that this conflict arises over Huckleberry Finn. According to the American Library Association, Twain’s slim volume describing the effects916 of racism and slavery in antebellum society is the most frequently banned book in the United States, as well as one of the nation’s most respected literary works. Black parents all over the country have asserted, as does Monteiro, that the book’s use of the word “nigger” some 215 times “has a negative effect on the self-esteem of young black students” and that it therefore “has no place in the classroom.” See Dan Cryer, Why Is Huck So Controversial?, Newsday, Oct. 15, 1996, at A33. Recent years have seen efforts to remove the work from libraries and reading lists in school districts in a number of states, including Pennsylvania, Ohio, and California, as well as Arizona. Although some districts voted to retain the book, many others have removed it from the curriculum due to concerns about the use of racial stereotypes and epithets.

There is, of course, an extremely wide—if not unlimited—range of literary products that might be considered injurious or offensive, particularly when one considers that high school students frequently take Advanced Placement courses that are equivalent to college-level courses. White plaintiffs could seek to remove books by Toni Morrison, Maya Angelou, and other prominent Black authors on the ground that they portray Caucasians in a derogatory fashion; Jews might try to impose civil liability for the teachings of Shakespeare and of more modern English poets where writings exhibit a similar anti-Semitic strain. Female students could attempt to make a case for damages for the assignment of some of the works of Tennessee Williams, Hemingway, or Freud, and male students for the writings of Andrea Dworkin or Margaret Atwood.¹² The number of potential lawsuits that could arise from the highly varied educational curricula throughout the nation might well be unlimited and unpredictable. Many school districts would undoubtedly prefer to “steer far” from any controversial book and instead substitute “safe” ones in order to reduce the possibility of civil liability and the expensive and time-consuming burdens of a lawsuit—even one having but a slight chance of success. In short, permitting lawsuits against school districts on the basis of the content of literary works to proceed past the complaint stage could have a significant chilling effect on a school district’s willingness to assign books with themes, characters, snippets of dialogue, or words that might offend the sensibilities of any number of persons or groups.

Further, any school board attempting to remove books from its curriculum on the ground that the works might offend would likely be vulnerable to First Amendment actions brought by students desiring to study those books, and possibly teachers, as well. Schools could be caught between those seeking to remove Huckleberry Finn and those seeking to study it. It would clearly not be in the best interests of our public education system and its students to have such competing lawsuits become a part of our legal landscape.

917

Nevertheless, as we said at the outset, there are important countervailing considerations that also must be weighed. We are aware that books can hurt, and that words can hurt—particularly racist epithets. We also recognize that the younger a person is, the more likely it is that those messages will help form that person’s thinking, and that the feelings of minority students, especially younger ones, are extremely vulnerable when it comes to books that are racist or have racist overtones. Nevertheless, for our courts or even our school boards to prohibit the assignment of literary works that may in some respects be racially offensive is simply not the proper solution.

First, the fact that a student is required to read a book does not mean that he is being asked to agree with what is in it. It cannot be disputed that a necessary component of any education is learning to think critically about offensive ideas—without that ability one can do little to respond to them. Second, it is important for young people to learn about the past—and to discover both the good and the bad in our history. Third, if all books with messages that might be deemed harmful were removed, the number of “acceptable” works might be highly limited. Next, we reject the notion that putting books on trial in our courts is the proper way to determine the appropriateness of their use in the classroom. Such judgments are ordinarily best left to school boards and educational officials charged with educating young people and determining which education materials are appropriate for which students, and under what circumstances. Therefore, although we recognize that books—and words—are powerful tools that can convey extremely injurious messages, we conclude that the assignment of a literary work determined to have intrinsic educational value by the duly authorized school authorities cannot constitute the type of discriminatory conduct prohibited by the Fourteenth Amendment and Title VI, regardless of the fact that the work may be deemed to contain racist ideas or language.

We do not, of course, suggest that racist actions on the part of teachers implementing a curriculum could not comprise discriminatory conduct for the purposes of Title VI or the Fourteenth Amendment. Nor do we preclude the prosecution of actions alleging that schools have pursued policies that serve to promote racist attitudes among their students, or have sought to indoctrinate their young charges with racist concepts. We conclude only that allegations that a school required that a book be read, and then refused to remove it from the curriculum, fails to provide the basis for a claim of discrimination under the Equal Protection Clause or Title VI, even when the school district is also accused of a failure to take steps to remedy a hostile racial environment. It is simply not the role of courts to serve as literary censors or to make judgments as to whether reading particular books does students more harm than good.

NOTES AND QUESTIONS

1. If you were on a school board or otherwise in a policymaking role for a school, would you include books like The Adventures of Huckleberry Finn in the curriculum? What are the arguments for and against including books that are918 considered “classics,” but that also include racial slurs or other racially hostile language or concepts, in the classroom experience?

2. The amended complaint in Monteiro apparently stated that the plaintiffs were not seeking to have the challenged books altogether removed from the classroom, but simply seeking to opt out from attending classes in which they were taught. This, however, did not change the court’s analysis. You will see further “opt out” cases in Section C of this chapter.

3. The Monteiro court indicated that “racist actions on the part of teachers implementing a curriculum” could give rise to a viable Equal Protection claim. In Arce v. Douglas, 793 F.3d 968 (9th Cir. 2015), the Ninth Circuit confronted a related issue—but in terms of legislators’, rather than teachers’, intentions. The Tucson Unified School District, the majority of whose student body is of Mexican or Hispanic descent, adopted a Mexican American Studies program in 1998. Over the next decade, political opposition to the program developed in the state, and in 2010, the Arizona legislature passed a statute, H.B. 2281, that prohibited school districts and charter schools from including any courses or classes that, among other things, were “designed primarily for pupils of a particular ethnic group” or “advocate[d] ethnic solidarity instead of the treatment of individuals.” It was clear that the statute was enacted with Tucson’s Mexican American Studies program in mind, and it was the first and only ethnic studies program found in violation of the statute.

A group of teachers and students sued, and the Ninth Circuit recently concluded that there was enough evidence to hold a trial on the plaintiffs’ Equal Protection claim. The court explained that although the statute was facially neutral, it had a disparate impact on Mexican American and other Hispanic students, and that there was a genuine issue of material fact as to whether it had been enacted with discriminatory intent.

PROBLEM

The West Dakota School District uses an Internet-filtering system called SafeChild on all computers that its students can use at school—in classrooms, in computer labs, and at the library—to access the Internet. The system blocks students from seeing websites that fall into the categories of “advertisements,” “pornography,” and “sexuality.” Because of the way that the SafeChild filtering system works, most websites expressing a positive viewpoint toward lesbian, gay, bisexual, and transgender individuals are systematically blocked because they get caught in the “sexuality” filter. By contrast, a larger percentage of websites that include a negative viewpoint toward LGBT individuals remain accessible to students because they do not get caught in SafeChild’s sexuality filter.

A group of high school parents, advised by an outside advocacy group, complained to the school district about SafeChild and pointed out the issue. They also submitted a letter from an outside librarian who stated that SafeChild failed to meet professional standards of librarianship, and that there were other filtering systems that did a better job of distinguishing between pornographic919 material and all pro-LGBT material. At a school board meeting, the issue was briefly discussed. One board member stated that he was concerned about letting students access, without parental consent, websites indicating that it was “okay to be gay.”

After a vote, the board members decided to leave the system in place, noting that they needed to comply with the Children’s Internet Protection Act, 47 U.S.C. §254(h)(6)(B)(i) (2006), under which schools must enforce “a policy of Internet safety for minors that includes monitoring the online activities of minors and the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are (I) obscene; (II) child pornography; or (III) harmful to minors.”

The group of parents, on behalf of their high school children, have now filed suit, alleging that the school district’s continued use of SafeChild violates their children’s First Amendment rights. How do you think the case is likely to come out?

B. PUBLIC SCHOOLTEACHERS’ RIGHT TO SPEAK IN THE CLASSROOM

The above section explored the limits of school boards’ discretion to make curriculum-related choices for their districts. What happens if a schoolteacher wants to diverge from those choices in some way? Does she possess First Amendment speech rights—in other words, a certain sphere of academic freedom—to adopt teaching methodologies and materials of her own choosing?

In the early 1990s, a circuit split developed over which line of Supreme Court cases governed that question. Some circuits applied Hazelwood’s “reasonably related to legitimate pedagogical purposes” standard to disputes in which a teacher was disciplined for her in-class speech (regardless of whether the speech reflected a conscious curricular choice or was more of a stray remark). In other words, if the school’s disciplinary response could be considered reasonably related to legitimate pedagogical concerns, it was upheld; if not, it was held to violate the First Amendment.¹³ Other circuits, meanwhile, applied the speech framework that the Supreme Court had generally developed for speech claims brought by government employees. Under this framework, which emerged from Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 491 U.S. 138 (1983), courts analyzing a government employee’s First Amendment claim that she was disciplined for her speech first consider whether the employee was speaking as a citizen on a matter of public concern. If not, the First Amendment920 claim immediately fails. If so, a court must then evaluate whether the employee’s First Amendment interest in making the speech outweighed the employer’s justification for limiting it, in a test known as “Pickering balancing.” Courts applying this test to teachers’ classroom speech included the Fourth, Fifth, and Sixth Circuits.¹⁴

Much of the difficulty stemmed from the fact that neither Hazelwood nor Pickering-Connick perfectly addressed the unique status of teachers’ classroom speech. Hazelwood was a student speech case, and its rationale was articulated in that context. Meanwhile, the Pickering-Connick two-pronged framework forced courts first to decide whether a teacher speaking in the classroom was speaking as a citizen on a matter of public concern, or as an employee on a matter of nonpublic concern. Given that a teacher’s role as an employee is often to speak in the classroom on matters of public concern, cases involving teachers’ classroom speech did not neatly fall on either side of this line.

In 2006, some of the confusion lifted when the Supreme Court decided Garcetti v. Ceballos, which involved a government employee who was allegedly punished for speech that he engaged in as an employee on a matter of public concern. As you will see, Garcetti held that the primary question here is whether the plaintiff was speaking as a citizen or as an employee. Since the plaintiff had been speaking as an employee, his speech was unprotected by the First Amendment, regardless of whether it was on a matter of public concern. Although Garcetti did not itself involve a teacher’s classroom speech, it had obvious implications for that issue.

Garcetti v. Ceballos

547 U.S. 410 (2006)

Justice Kennedy delivered the opinion of the Court.

It is well settled that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties.

Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los Angeles County District Attorney’s Office. During the period relevant to this case, Ceballos was a calendar deputy in the office’s Pomona branch, and in this capacity he exercised certain supervisory responsibilities over other lawyers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were921 inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion to traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases.

After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations.

Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff’s Department, but he did not receive a satisfactory explanation for the perceived inaccuracies. He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a disposition memorandum.

Based on Ceballos’ statements, a meeting was held to discuss the affidavit. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos for his handling of the case.

Despite Ceballos’ concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant.

Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Ceballos [filed suit, alleging that] petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo.

Petitioners contended that, in any event, Ceballos’ memo was not protected speech under the First Amendment. Petitioners moved for summary judgment, and the District Court granted their motion.

The Court of Appeals for the Ninth Circuit reversed, holding that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.”

We granted certiorari, and we now reverse.

As the Court’s decisions have noted, for many years “the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.” That dogma has been qualified in important respects. The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.

Pickering provides a useful starting point in explaining the Court’s doctrine. There the relevant speech was a teacher’s letter to a local newspaper addressing issues including the funding policies of his school board. “The problem in any922 case,” the Court stated, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” The Court found the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” Thus, the Court concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”

Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.

III

With these principles in mind we turn to the instant case. Respondent Ceballos believed the affidavit used to obtain a search warrant contained serious misrepresentations. He conveyed his opinion and recommendation in a memo to his supervisor. That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like “any member of the general public,” to hold that all speech within the office is automatically exposed to restriction.

The memo concerned the subject matter of Ceballos’ employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker’s job. As the Court noted in Pickering: “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” The same is true of many other categories of public employees.

The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor923 about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.

Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.

This result is consistent with our precedents’ attention to the potential societal value of employee speech. Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.

Our holding likewise is supported by the emphasis of our precedents on affording government employers sufficient discretion to manage their operations. Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission. Ceballos’ memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff’s department. If Ceballos’ superiors thought his memo was inflammatory ormisguided, they had the authority to take proper corrective action.

When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a924 similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.

Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail.

Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions.

Second, Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.

The Court holds that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write “pursuant to…official duties.”

NOTES AND QUESTIONS

1. Why did the Supreme Court hold that Ceballos’ speech was unprotected here? On which prong of the Pickering-Connick test did he lose?

2. How did the majority opinion distinguish between Ceballos’s speech and Pickering’s speech? Why did the latter deserve more protection?

3. Garcetti was a very close case. It had to be reargued after Justice Sandra Day O’Connor’s retirement because, without her, the Supreme Court was split 4-4. After Justice Alito joined the Court and the case was reargued, the Court ultimately ruled against Ceballos by a 5-4 vote. Do you find Justice Kennedy’s overall approach convincing, or do you think it provides too little protection for government employees’ speech?

925

As Justice Souter pointed out in dissent, Garcetti’s holding suggested that even public university professors—who, after all, have job responsibilities that typically include speaking and writing about issues of public concern—might not have their academic speech protected by the First Amendment. In response, Justice Kennedy explicitly declined to reach the question of how Garcetti applied “to a case involving speech related to scholarship or teaching.”

Courts have been reading this carve-out, however, as applying only at the university level, not to public K-12 teachers. Moreover, at least one circuit that had previously been applying Hazelwood to teachers’ classroom speech has now shifted to the Pickering-Connick-Garcetti framework.¹⁵ The upshot is that under current law, teachers have very little constitutional protection for their classroom speech. While tenured teachers may nonetheless enjoy strong job security under the applicable state tenure rules, untenured teachers whose only source of protection is the First Amendment are vulnerable here, as illustrated by the following case.

Evans-Marshall v. Board of Education of the Tipp City Exempted Village School District

624 F.3d 332 (6th Cir. 2010)

Sutton, Circuit Judge.

Does a public high school teacher have a First (and Fourteenth) Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials”? Yes, says the teacher, Shelley Evans-Marshall. No, says the Tipp City Board of Education. Because the right to free speech protected by the First Amendment does not extend to the in-class speech of teachers in primary and secondary schools made “pursuant to” their official duties, Garcetti v. Ceballos, we affirm the judgment rejecting this claim as a matter of law.

In 2000, the Tipp City Board of Education hired Evans-Marshall to teach English and to supervise Tippecanoe High School’s literary magazine, BirchBark, for the 2000-2001 school year. The Board renewed her contract for the 2001-2002 school year, when Evans-Marshall taught English to 9th and 11th grade students and a creative writing course to 11th and 12th grade students. At the beginning of the fall semester, Evans-Marshall assigned Ray Bradbury’s Fahrenheit 451 to her 9th graders. To the end of exploring the book’s theme of government censorship, she distributed a list compiled by the American Library Association of the “100 Most Frequently Challenged Books.” Students divided into groups, and Evans-Marshall asked each group to pick a book from the list, to investigate the reasons why the book was challenged and to lead an in-class926 debate about the book. Two groups chose Heather Has Two Mommies by Leslea Newman.

A parent complained about Heather Has Two Mommies, and the principal, Charles Wray, asked Evans-Marshall to tell the students to choose a different book. She complied, explaining to her class that “they were in a unique position to…use this experience as source material for their debate because they were in the…position of having actually experienced censorship in preparing to debate censorship.” After the class completed the Fahrenheit 451 unit, Evans-Marshall assigned Siddhartha by Hermann Hesse and used it as the basis for in-class discussions about “spirituality, Buddhism, romantic relationships, personal growth, [and] familial relationships.”

At the October 2001 meeting of the school board, twenty-five or so parents complained about the curricular choices in the schools, including Siddhartha and the book-censorship assignment. The next day, Principal Wray called a meeting of the English department and told Evans-Marshall that she was “on the hot seat.” Nearly 100 parents, as well as the local news media, attended the board’s November meeting. For over an hour, parents expressed concerns about books in the curriculum and in the school libraries. While the parents mentioned many books, they raised particular objections to the materials in Evans-Marshall’s classroom and her teaching methods. Superintendent John Zigler explained that the school board had purchased many of the materials, including Siddhartha, several years before, making it difficult to criticize Evans-Marshall for teaching a book the school board had bought. “You should be embarrassed,” one parent responded, referring to the explicit language and sexual themes in the book. Another parent complained that she had asked for an alternative assignment—instead of Siddhartha—and “was given three books,” two of which “were for a four-to-eight year old.” “I’m not going to put my daughter through this,” the parent added, explaining that she thought Evans-Marshall was “punish[ing] my daughter.” A group of parents presented the board with a 500-signature petition calling for “decency and excellence” in the classroom.

The meeting was not one-sided. A member of the board—a parent himself—warned that the school district’s policies about potentially objectionable material “have to be well thought out because what you might find offensive, I might not.” Another board member reminded the group that, as elected officials, the board “must walk the middle of the road to some extent,” even if the community might “err…on the conservative side.” And a parent who made a formal statement said that he “[did not] condone” the behavior of some of the more vocal parents and trusted that school officials “want what’s best for our kids.”

The matter did not end there. In teaching creative writing, Evans-Marshall maintained a file of student writing samples that she shared with students who asked for additional guidance on assignments. Running low on copies of some of the samples, she sent three of them to support staff to be copied. A member of the copy room staff, apparently not a friend, showed the writing samples to Wray, saying he “ought to read this.” After reading the papers, Wray called Evans-Marshall to his office. When she arrived, he waved two of the writing samples in his hand, one a first-hand account of a rape, the other a story about a young boy927 who murdered a priest and desecrated a church. “[A]re you going to use these in class after everything that’s happened?” he shouted. Marshall explained that the writing samples were not intended for in-class distribution and that she would refrain from sharing the papers if he wanted. Wray said that he did not like the materials she was using in her classroom or the themes of her in-class discussions and that he “intended to rei[n] it in.”

The two soon had another argument in the school library about Evans-Marshall’s plans to give a final exam involving group discussions and student self-evaluations. Evans-Marshall asked Wray to give her a model exam so she could “give [him] back exactly what [he] want[ed],” prompting Wray to call her a “smart a—.” The next day, Evans-Marshall complained to Superintendent Zigler about Wray’s behavior. Zigler told her to meet with Wray after the semester break to work things out and offered to speak with Wray in the meantime. He also said that she should feel free to file a formal grievance if things had not been worked out by January.

Things did not work out by January. Wray and Evans-Marshall talked, but they fell back into the same channels of disagreement.

At its March 2002 meeting, the school board voted unanimously not to renew Evans-Marshall’s contract. She requested an explanation, and the school board sent her a letter on April 9, 2002, saying that her non-renewal was “due to problems with communication and teamwork.” At Evans-Marshall’s request, the board held a formal hearing about the employment decision. Principal Wray, Superintendent Zigler and Evans-Marshall all testified, and the board again voted unanimously not to renew her contract.…

In March 2003, Evans-Marshall filed this §1983 action against the school board, Wray and Zigler. She alleged that the school board and other defendants had retaliated against her “curricular and pedagogical choices,” infringing her First Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials.” The defendants moved to dismiss the complaint for failure to state a claim under Civil Rule 12(b)(6), but the district court held that Evans-Marshall had sufficiently alleged a First Amendment violation. We affirmed.

After discovery by both sides, the defendants again moved for summary judgment, arguing that the Supreme Court’s intervening decision in Garcetti v. Ceballos, and the unrebutted facts gleaned from discovery foreclosed Evans-Marshall’s claim.

This free-speech-retaliation case implicates two competing intuitions. On the one side, doesn’t a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against? On the other side, doesn’t a school board have the final say over what is taught, and how, in the public schools for which it is responsible?

When government employees speak “pursuant to their official duties,” Garcetti teaches that they are “not speaking as citizens for First Amendment928 purposes.” Any dispute over the board’s motivations, Pickering balancing or the “public concerns” of her speech under Connick is beside the point if, as Evans-Marshall does not dispute, she made her curricular and pedagogical choices in connection with her official duties as a teacher.

In the light cast by Garcetti, it is clear that the First Amendment does not generally “insulate” Evans-Marshall “from employer discipline,” even discipline prompted by her curricular and pedagogical choices and even if it otherwise appears (at least on summary judgment) that the school administrators treated her shabbily. When a teacher teaches, “the school system does not ‘regulate’ [that] speech as much as it hires that speech. Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary.” And if it is the school board that hires that speech, it can surely “regulate the content of what is or is not expressed,” what is expressed in other words on its behalf. Only the school board has ultimate responsibility for what goes on in the classroom, legitimately giving it a say over what teachers may (or may not) teach in the classroom.

It is true that teachers, like students, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” But that does not transform them into the employee and employer when it comes to deciding what, when and how English is taught to fifteen-year-old students. Consider the difference between the speech of Evans-Marshall and Marvin Pickering, teachers both. When Pickering sent a letter to the local newspaper criticizing the school board, he said something that any citizen has a right to say, and he did it on his own time and in his own name, not on the school’s time or in its name. Yet when Evans-Marshall taught 9th grade English, she did something she was hired (and paid) to do, something she could not have done but for the Board’s decision to hire her as a public school teacher. As with any other individual in the community, she had no more free-speech right to dictate the school’s curriculum than she had to obtain a platform—a teaching position—in the first instance for communicating her preferred list of books and teaching methods. “[N]o relevant analogue” exists between her in-class curricular speech and speech by private citizens.

Teachers are not everyday citizens, Evans-Marshall insists, and they have a right “to select books and methods of instruction for use in the classroom without interference from public officials.” But that is not what Ohio law provides or the First Amendment requires. Start with Ohio law. Under it, “[t]he board of education of each city…shall prescribe a curriculum.” State law gives elected officials—the school board—not teachers, not the chair of a department, not the principal, not even the superintendent, responsibility over the curriculum. This is an accountability measure, pure and simple, one that ensures the citizens of a community have a say over a matter of considerable importance to many of them—their children’s education—by giving them control over membership on the board.

The First Amendment does not ban this policy choice or this accountability measure. The Constitution does not prohibit a State from creating elected school boards and from placing responsibility for the curriculum of each school district in the hands of each board. Teachers no doubt are “required…to speak or929 write” and otherwise express themselves, but this does not make them “sovereign[s] unto [themselves].” “The curricular choices of the schools should be presumptively their own—the fact that such choices arouse deep feelings argues strongly for democratic means of reaching them.”

How at any rate would a contrary approach work? If one teacher, Evans-Marshall, has a First Amendment right “to select books and methods of instruction for use in the classroom,” so presumably do other teachers. Evans-Marshall may wish to teach Siddhartha in the first unit of the school year in a certain way, but the chair of the English department may wish to use the limited time in a school year to teach A Tale of Two Cities at that stage of the year. Maybe the head of the upper school has something else in mind. When educators disagree over what should be assigned, as is surely bound to happen if each of them has a First Amendment right to influence the curriculum, whose free-speech rights win? Why indeed doesn’t the principal, Wray, have a right to defend the discharge on the ground that he was merely exercising his First Amendment rights in rejecting Evans-Marshall’s curricular choices and methods of teaching? Placing the First Amendment’s stamp of approval on these kinds of debates not only would “demand permanent judicial intervention in the conduct of governmental operations,” but it also would transform run-of-the-mill curricular disputes into constitutional stalemates.

That is not the only problem. What employer discipline arising from an employee’s manner of teaching—choices of books and the methods of teaching them—does not implicate speech? Could a teacher respond to a principal’s insistence that she discuss certain materials by claiming that it improperly compels speech? Could a teacher continue to assign materials that members of the community perceive as racially insensitive even after the principal tells her not to? Could a teacher raise a controversial topic (say, the virtues of one theory of government over another or the virtues of intelligent design) after a principal has told her not to? Could a teacher introduce mature sexual themes to fifteen year olds when discussing a work of literature after a principal has told her not to? And “[d]oes a music teacher retain veto power over that most controversial of school productions—the Holiday Concert?”

The key insight of Garcetti is that the First Amendment has nothing to say about these kinds of decisions. An employee does not lose “any liberties the employee might have enjoyed as a private citizen” by signing on to work for the government, but by the same token, the government, just like a private employer, retains “control over what the employer itself has commissioned or created”: the employee’s job. And that insight has particular resonance in the context of public education. Every child in Ohio must attend school, providing public school teachers with a captive audience for their in-class speech, and providing a compelling reason for putting curricular choices in the hands of “someone [they] can vote out of office,” or who is otherwise democratically accountable.

Nor can Evans-Marshall sidestep this conclusion on the theory that Garcetti does not apply. In his dissent in Garcetti, as Evans-Marshall points out, Justice Souter raised concerns about the applicability of the decision to “academic freedom in public colleges and universities.” The majority disclaimed any intent to resolve the point.

930

Garcetti’s caveat offers no refuge to Evans-Marshall. She is not a teacher at a “public college[]” or “university” and thus falls outside of the group the dissent wished to protect. The concept of “academic freedom,” moreover, does not readily apply to in-class curricular speech at the high school level. As a cultural and a legal principle, academic freedom “was conceived and implemented in the university” out of concern for “teachers who are also researchers or scholars—work not generally expected of elementary and secondary school teachers.” “[U]niversities occupy a special niche in our constitutional tradition” and the constitutional rules applicable in higher education do not necessarily apply in primary and secondary schools, where students generally do not choose whether or where they will attend school.

Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s oversight, as opposed to the teacher’s right to speak and write publicly about academic issues outside of the classroom. “[I]t is the educational institution that has a right to academic freedom, not the individual teacher.”

NOTES AND QUESTIONS

1. The Sixth Circuit stated that the concept of academic freedom “does not readily apply to in-class curricular speech at the high school level.” Do you agree that the notion of academic freedom—at least on the part of the individual teacher—should be limited to the university setting?

2. A recent case comment argues that “[i]nstead of applying Garcetti, the court should have created a new balancing test that accounts for the in-class interests of teachers, school administrators, and students. The presence of students and a third and equal institutional actor differentiates the education context from the broader sphere of public employment and counsels against applying Garcetti to teachers’ in-class curricular speech.…The Sixth Circuit should have borrowed elements from Tinker and Hazelwood to create a new balancing test for teachers’ curricular decisions: does the teacher’s interest in choosing her desired instructional methods and materials, coupled with the students’ interest in receiving this information, outweigh the administrators’ interest in promoting effective education?” 124 Harv. L. Rev. 2107 (2011). What are the arguments for and against such an approach? Can you think of another test that you would advocate?

3. While K-12 public school teachers may have little First Amendment protection for their classroom speech, many of them are tenured and thus enjoy considerable job security under state law. The nature of tenure protection varies from state to state, but it typically protects teachers—who are considered for tenure after having been employed on a probationary basis for several years—from being terminated except for just cause (i.e., incompetence or misconduct). Tenured teachers are also usually entitled to extensive review931 procedures before they can be terminated from their positions. As such, absent extreme circumstances, tenured teachers are unlikely to be terminated for some degree of deviation from the curriculum.

4. What about teachers who are disciplined for their off-campus speech? Here, because they are not speaking in their capacity as employees, they have the potential to receive more protection. Such a teacher would need to show that her off-campus speech was on a matter of public concern, and that the school district lacked an adequate reason for punishing it. Indeed, as you read above, Pickering itself involved a teacher’s off-campus speech: a letter to the editor that criticized the school board’s funding decisions. The Pickering Court held that the school’s termination of the teacher was unconstitutional because the teacher’s letter could neither be shown nor “presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” The Court added that if, by contrast, the teacher’s statements had been “so without foundation to call into question his fitness to perform his duties in the classroom,” or if the statements had been “directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher” and thus had the potential to undermine workplace discipline and harmony, then the school would have been justified in terminating him. In sum, this is a very fact-specific inquiry that hinges on the substance and effect of the teacher’s off-campus speech.

PROBLEM

The week before an upcoming presidential election, Windy Hills High School teacher David Dobbs—an untenured teacher in his second year on the job—devoted class time to having his students hold a mock debate. One student played the role of the Democratic candidate; the other student played the role of the Republican candidate. The other students were members of the audience, posing questions to both candidates. At the end of the debate, the students had the opportunity to vote. They voted in favor of the Democratic candidate by a 3-2 margin. After the vote, as the students were leaving class, one of them asked Mr. Dobbs how he planned to vote in the election. “Well, I probably should keep that private,” said Mr. Dobbs, “but I’ll just say that if the American public votes the way this class just did, I’ll be very happy on Election Day.” Not all of the students heard his answer, since they were on their way out, but many of them did, and they told other students about it.

Several of the students who had supported the Republican candidate were upset that Mr. Dobbs had indicated his political leanings to the class, especially after having just said that he should keep that information private. They complained to the school principal, who is now thinking about how to handle the situation. If the school were to sanction Mr. Dobbs for his speech, would Mr. Dobbs have a valid legal challenge?

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C. PARENTS’ RIGHTS TO SHIELD THEIR CHILDREN FROM PORTIONS OF THE PUBLIC SCHOOL CURRICULUM

In Wisconsin v. Yoder, presented in Chapter 9, the Supreme Court ruled in favor of Amish parents who claimed that Wisconsin’s mandatory education law violated their constitutional rights. These parents were opting out of public education altogether—indeed, any education at the high school level—for their children. But what happens when parents want to opt out of public education, but not completely? Do parents have any constitutional rights to send their children to public school but then shield them from certain portions of the curriculum, either because they disagree with them or because they would prefer to expose their children to these ideas at home? As you will see, so far cases alleging such claims—either under the Free Exercise Clause, parental due process rights, or both—have been unsuccessful, but courts have implied that in certain very limited circumstances, they might have merit.

Mozert v. Hawkins County Board of Education

827 F.2d 1058 (6th Cir. 1987) (en banc)

Lively, Chief Judge.

This case arose under the Free Exercise Clause of the First Amendment, made applicable to the states by the Fourteenth Amendment. The district court held that a public school requirement that all students in grades one through eight use a prescribed set of reading textbooks violated the constitutional rights of objecting parents and students.

Early in 1983 the Hawkins County, Tennessee Board of Education adopted the Holt, Rinehart and Winston basic reading series (the Holt series) for use in grades 1-8 of the public schools of the county.

The plaintiff Vicki Frost is the mother of four children, three of whom were students in Hawkins County public schools in 1983. At the beginning of the 1983-84 school year Mrs. Frost read a story in a daughter’s sixth grade reader that involved mental telepathy. Mrs. Frost, who describes herself as a “born again Christian,” has a religious objection to any teaching about mental telepathy. Reading further, she found additional themes in the reader to which she had religious objections. After discussing her objections with other parents, Mrs. Frost talked with the principal of Church Hill Middle School and obtained an agreement for an alternative reading program for students whose parents objected to the assigned Holt reader. The students who elected the alternative program left their classrooms during the reading sessions and worked on933 assignments from an older textbook series in available office or library areas. Other students in two elementary schools were excused from reading the Holt books.

In November 1983 the Hawkins County School Board voted unanimously to eliminate all alternative reading programs and require every student in the public schools to attend classes using the Holt series. Thereafter the plaintiff students refused to read the Holt series or attend reading classes where the series was being used. The children of several of the plaintiffs were suspended for brief periods for this refusal. Most of the plaintiff students were ultimately taught at home, or attended religious schools, or transferred to public schools outside Hawkins County. One student returned to school because his family was unable to afford alternate schooling. Even after the board’s order, two students were allowed some accommodation, in that the teacher either excused them from reading the Holt stories, or specifically noted on worksheets that the student was not required to believe the stories.

On December 2, 1983, the plaintiffs, consisting of seven families—14 parents and 17 children—filed this action pursuant to 42 U.S.C. §1983. In their complaint the plaintiffs asserted that they have sincere religious beliefs which are contrary to the values taught or inculcated by the reading textbooks and that it is a violation of the religious beliefs and convictions of the plaintiff students to be required to read the books and a violation of the religious beliefs of the plaintiff parents to permit their children to read the books. The plaintiffs sought to hold the defendants liable because “forcing the student-plaintiffs to read school books which teach or inculcate values in violation of their religious beliefs and convictions is a clear violation of their rights to the free exercise of religion protected by the First and Fourteenth Amendments to the United States Constitution.”

[At trial,] Vicki Frost was the first witness for the plaintiffs and she presented the most complete explanation of the plaintiffs’ position. The plaintiffs do not belong to a single church or denomination, but all consider themselves born again Christians. Mrs. Frost testified that the word of God as found in the Christian Bible “is the totality of my beliefs.” There was evidence that other members of their churches, and even their pastors, do not agree with their position in this case.

Mrs. Frost testified that she had spent more than 200 hours reviewing the Holt series and had found numerous passages that offended her religious beliefs. She stated that the offending materials fell into seventeen categories which she listed. These ranged from such familiar concerns of fundamentalist Christians as evolution and “secular humanism” to less familiar themes such as “futuristic supernaturalism,” pacifism, magic and false views of death.

934

In her lengthy testimony Mrs. Frost identified passages from stories and poems used in the Holt series that fell into each category. Illustrative is her first category, futuristic supernaturalism, which she defined as teaching “Man As God.” Passages that she found offensive described Leonardo da Vinci as the human with a creative mind that “came closest to the divine touch.” Similarly, she felt that a passage entitled “Seeing Beneath the Surface” related to an occult theme, by describing the use of imagination as a vehicle for seeing things not discernible through our physical eyes. She interpreted a poem, “Look at Anything,” as presenting the idea that by using imagination a child can become part of anything and thus understand it better. Mrs. Frost testified that it is an “occult practice” for children to use imagination beyond the limitation of scriptural authority. She testified that the story that alerted her to the problem with the reading series fell into the category of futuristic supernaturalism. Entitled “A Visit to Mars,” the story portrays thought transfer and telepathy in such a way that “it could be considered a scientific concept,” according to this witness. This theme appears in the testimony of several witnesses, i.e., the materials objected to “could” be interpreted in a manner repugnant to their religious beliefs.

Mrs. Frost described objectionable passages from other categories in much the same way. Describing evolution as a teaching that there is no God, she identified 24 passages that she considered to have evolution as a theme. She admitted that the textbooks contained a disclaimer that evolution is a theory, not a proven scientific fact. Nevertheless, she felt that references to evolution were so pervasive and presented in such a factual manner as to render the disclaimer meaningless. After describing her objection to passages that encourage children to make moral judgments about whether it is right or wrong to kill animals, the witness stated, “I thought they would be learning to read, to have good English and grammar, and to be able to do other subject work.”

Another witness for the plaintiffs was Bob Mozert, father of a middle school and an elementary school student in the Hawkins County system. His testimony echoed that of Vicki Frost in large part, though his answers to questions tended to be much less expansive. He also found objectionable passages in the readers that dealt with magic, role reversal or role elimination, particularly biographical material about women who have been recognized for achievements outside their homes, and emphasis on one world or a planetary society. Both witnesses testified under cross-examination that the plaintiff parents objected to passages that expose their children to other forms of religion and to the feelings, attitudes and values of other students that contradict the plaintiffs’ religious views without a statement that the other views are incorrect and that the plaintiffs’ views are the correct ones.

III

The first question to be decided is whether a governmental requirement that a person be exposed to ideas he or she finds objectionable on religious935 grounds constitutes a burden on the free exercise of that person’s religion as forbidden by the First Amendment.

The complaint mentioned only the textbooks that the students were required to read. It did not seek relief from any method of teaching the material and did not mention the teachers’ editions. The plaintiffs did not produce a single student or teacher to testify that any student was ever required to affirm his or her belief or disbelief in any idea or practice mentioned in the various stories and passages contained in the Holt series. However, the plaintiffs appeared to assume that materials clearly presented as poetry, fiction and even “make-believe” in the Holt series were presented as facts which the students were required to believe. Nothing in the record supports this assumption.

At numerous places in her testimony Vicki Frost referred to various exercises and suggestions in the teachers’ manuals as support for her view that objectionable ideas were being inculcated as truth rather than being offered as examples of the variety of approaches possible to a particular question. However, the students were not required to read the teachers’ materials. While these materials suggested various ways of presenting the lessons, including “acting out” and round table discussions, there was no proof that any plaintiff student was ever called upon to say or do anything that required the student to affirm or deny a religious belief or to engage or refrain from engaging in any act either required or forbidden by the student’s religious convictions. Mrs. Frost seemed to assume that each teacher used every suggested exercise or teaching tool in the teachers’ editions. There was evidence that reading aloud and acting out the themes encountered in school lessons help young people learn. One of the teachers stated that students read some of the stories aloud. Proof that an objecting student was required to participate beyond reading and discussing assigned materials, or was disciplined for disputing assigned materials, might well implicate the Free Exercise Clause because the element of compulsion would then be present. But this was not the case either as pled or proved.

Mrs. Frost testified that it would be acceptable for the schools to teach her children about other philosophies and religions, but if the practices of other religions were described in detail, or if the philosophy was “profound” in that it expressed a world view that deeply undermined her religious beliefs, then her children “would have to be instructed to [the] error [of the other philosophy].” It is clear that to the plaintiffs there is but one acceptable view—the Biblical view, as they interpret the Bible. Furthermore, the plaintiffs view every human situation and decision, whether related to personal belief and conduct or to public policy and programs, from a theological or religious perspective. Mrs. Frost testified that many political issues have theological roots and that there would be “no way” certain themes could be presented without violating her religious beliefs. She identified such themes as evolution, false supernaturalism, feminism, telepathy and magic as matters that could not be presented in any way without offending her beliefs. The only way to avoid conflict with the plaintiffs’ beliefs in these sensitive areas would be to eliminate all references to the subjects so identified. However, the Supreme Court has clearly held that it violates the Establishment Clause to tailor a public school’s curriculum to satisfy the principles or prohibitions of any religion.

936

It is clear that governmental compulsion either to do or refrain from doing an act forbidden or required by one’s religion, or to affirm or disavow a belief forbidden or required by one’s religion, is the evil prohibited by the Free Exercise Clause.

The plaintiffs appear to contend that the element of compulsion was supplied by the requirement of class participation in the reading exercises. As we have pointed out earlier, there is no proof in the record that any plaintiff student was required to engage in role play, make up magic chants, read aloud or engage in the activity of haggling. Being exposed to other students performing these acts might be offensive to the plaintiffs, but it does not constitute the compulsion described in the Supreme Court cases, where the objector was required to affirm or deny a religious belief or engage or refrain from engaging in a practice contrary to sincerely held religious beliefs.

[Yoder] is the only Supreme Court decision that might be read to support the proposition that requiring mere exposure to materials that offend one’s religious beliefs creates an unconstitutional burden on the free exercise of religion. However, Yoder rested on such a singular set of facts that we do not believe it can be held to announce a general rule that exposure without compulsion to act, believe, affirm or deny creates an unconstitutional burden.

The parents in Yoder were required to send their children to some school that prepared them for life in the outside world, or face official sanctions. The parents in the present case want their children to acquire all the skills required to live in modern society. They also want to have them excused from exposure to some ideas they find offensive. Tennessee offers two options to accommodate this latter desire. The plaintiff parents can either send their children to church schools or private schools, as many of them have done, or teach them at home.

Yoder was decided in large part on the impossibility of reconciling the goals of public education with the religious requirement of the Amish that their children be prepared for life in a separated community. No such threat exists in the present case.

The Supreme Court has recently affirmed that public schools serve the purpose of teaching fundamental values “essential to a democratic society.” These values “include tolerance of divergent political and religious views” while taking into account “consideration of the sensibilities of others.” Fraser. The Court has noted with apparent approval the view of some educators who see public schools as an “assimilative force” that brings together “diverse and conflicting elements” in our society “on a broad but common ground.” The critical reading approach furthers these goals. Mrs. Frost stated specifically937 that she objected to stories that develop “a religious tolerance that all religions are merely different roads to God.” Stating that the plaintiffs reject this concept, presented as a recipe for an ideal world citizen, Mrs. Frost said, “We cannot be tolerant in that we accept other religious views on an equal basis with ours.” While probably not an uncommon view of true believers in any religion, this statement graphically illustrates what is lacking in the plaintiffs’ case.

Boggs, Circuit Judge, concurring.

I approach this case with a profound sense of sadness. At the classroom level, the pupils and teachers in these schools had in most cases reached a working accommodation. Only by the decisions of higher levels of political authority, and by more conceptualized presentations of the plaintiffs’ positions, have we reached the point where we must decide these harsh questions today. The school board faced what must have seemed a prickly and difficult group of parents, however dedicated to their children’s welfare. In a similar situation, the poet Edwin Markham described a solution:

He drew a circle that shut me out—Heretic, Rebel, a thing to flout.

But Love and I had the wit to win:

We drew a circle that took him in!

As this case now reaches us, the school board rejects any effort to reach out and take in these children and their concerns. At oral argument, the board specifically argued that it was better for both plaintiffs’ children and other children that they not be in the public schools, despite the children’s obvious desire to obtain some of the benefits of public schooling. Though the board recognized that their allegedly compelling interests in shaping the education of Tennessee children could not be served at all if they drove the children from the school, the board felt it better not to be associated with any hybrid program.

Plaintiffs’ requests were unusual, but a variety of accommodations in fact were made, with no evidence whatsoever of bad effects. Given the masses of speculative testimony as to the hypothetical future evils of accommodating plaintiffs in any way, had there been any evidence of bad effects from what actually occurred, the board would surely have presented it. As we ultimately decide here, on the present state of constitutional law, the school board is indeed entitled to say, “my way or the highway.” But in my view the school board’s decision here is certainly not required by the Establishment Clause.¹⁶

Returning to the treatment of plaintiffs’ free exercise claim, I believe this is a more difficult case than outlined in the court’s opinion. I disagree with the first938 proposition in the court’s opinion, that plaintiffs object to any exposure to any contrary idea. A reasonable reading of plaintiffs’ testimony shows they object to the overall effect of the Holt series, not simply to any exposure to any idea opposing theirs.

Ultimately, I think we must address plaintiffs’ claims as they actually impact their lives: it is their belief that they should not take a course of study which, on balance, to them, denigrates and opposes their religion, and which the state is compelling them to take on pain of forfeiting all other benefits of public education.

Their view may seem silly or wrong-headed to some, but it is a sincerely held religious belief. By focusing narrowly on references that make plaintiffs appear so extreme that they could never be accommodated, the court simply leaves resolution of the underlying issues here to another case, when we have plaintiffs with a more sophisticated understanding of our own and Supreme Court precedent, and a more careful and articulate presentation of their own beliefs.

Under the court’s assessment of the facts, this is a most uninteresting case. It is not the test case sought, or feared, by either side. The court reviews the record and finds that the plaintiffs actually want a school system that affirmatively teaches the correctness of their religion, and prevents other students from mentioning contrary ideas. If that is indeed the case, then it can be very simply resolved. It would obviously violate the Establishment Clause for any school system to agree with such an extravagant view.

[The] plaintiffs may “want” a school system tailored exactly to their religious beliefs (that is why many people choose religious education), but they very well know that that is constitutionally impermissible. They “want” a particular type of accommodation that they have sought in this law suit, and they believe that they are constitutionally entitled to that. Thus, I believe we must take plaintiffs’ claims as they have stated them—that they desire the accommodation of an opt-out, or alternative reading books, and no more. That is all they have ever asked for in their pleadings, in the arguments at trial and in appellate briefing and argument.

Here, the burden is many years of education, being required to study books that, in plaintiffs’ view, systematically undervalue, contradict and ignore their religion. I trust it is not simply because I am chronologically somewhat closer than my colleagues to the status of the students involved here that I interpret the choice forced upon the plaintiffs here as a “burden.”

However, constitutional adjudication, especially for a lower court, is not simply a matter of common sense use of words. We must determine whether the common sense burden on plaintiffs’ religious belief is, in the context of a public school curriculum, a constitutional “burden” on their religious beliefs.

I reluctantly conclude that under the Supreme Court’s decisions as we have them, school boards may set curricula bounded only by the Establishment Clause, as the state contends. Our holding requires plaintiffs to put up with what they perceive as an unbalanced public school curriculum, so long as the curriculum does not violate the Establishment Clause.

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NOTES AND QUESTIONS

1. Why did the Mozert majority emphasize that the plaintiff children were never required to say or do anything that conflicted with their religious beliefs? How did this affect the court’s free exercise analysis?

2. How do the majority and concurrence differ in their view of this case?

3. Nomi Maya Stolzenberg observes that Mozert “crystallizes the paradox of tolerance for the intolerant: the fundamentalists’ call for eliminating tolerance from the public schools can be rebuffed only at the expense of maintaining an environment that is exceedingly inhospitable to the fundamentalists, and is potentially inimical to the survival of their way of life.” Nomi Maya Stolzenberg, “He Drew A Circle That Shut Me Out”: Assimilation, Indoctrination, and the Paradox of a Liberal Education, 106 Harv. L. Rev. 581, 584 (1993). But Stolzenberg also articulates an alternative way to interpret the poem cited by Judge Boggs:

Judge Boggs lamented the fact that the school board “drove the children from the school,” instead of enfolding them in a more inclusive “hybrid program.” As he saw it, accommodations in the form of exemptions from the reading program would have represented the inclusive “circle” of “Love,” whereas the imposition of the reading requirements constituted a circle of exclusion.

However, the poem can be interpreted in just the opposite way with the school board’s insistence on including all school children in one reading program seen as the canny, agappic “circle that took [them] in!” Conversely, permitting parents to insulate their children from exposure to foreign ideas can be seen as a way of drawing a circle that “shut[s] [their children] out” from the larger democratic society.

These two readings reflect the tension between cultural pluralism and assimilation that underlies the fundamentalists’ complaint against secular humanist education. On the one hand, exposing children to diverse positions and attitudes assimilates them into pluralist culture, thereby preparing them for participation in a democratic society. Hence, this exposure includes children in civic life, but also threatens the survival of certain traditional ways of life. On the other hand, insulating children from exposure to diversity helps to protect and perpetuate their parents’ traditional way of life, but it also renders the children less fit for participation in a pluralist democracy.

Id. at 585. Which interpretation do you find more persuasive?

4. Relatedly, putting aside the legal question of whether the school district was required to accommodate the plaintiff families’ requests for an alternative program for their children, do you think that the school district should have continued to accommodate them?

5. How did the Mozert majority distinguish this case from Yoder? Do you find its distinctions persuasive?

In recent years, parents seeking recognition of a constitutional right to shield their children from portions of the school curriculum have frequently joined their free exercise challenges with claims sounding in their substantive due process right under the Fourteenth Amendment to direct their children’s upbringing. This strategy, however, has not yielded them any greater success.

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Parker v. Hurley

514 F.3d 87 (1st Cir. 2008)

Lynch, Circuit Judge.

Two sets of parents, whose religious beliefs are offended by gay marriage and homosexuality, sued the Lexington, Massachusetts school district in which their young children are enrolled. They assert that they must be given prior notice by the school and the opportunity to exempt their young children from exposure to books they find religiously repugnant. Plaintiffs assert violations of their own and their children’s rights under the Free Exercise Clause and their substantive parental and privacy due process rights under the U.S. Constitution.

The Parkers object to their child being presented in kindergarten and first grade with two books that portray diverse families, including families in which both parents are of the same gender. The Wirthlins object to a second-grade teacher’s reading to their son’s class a book that depicts and celebrates a gay marriage. The parents do not challenge the use of these books as part of a nondiscrimination curriculum in the public schools, but challenge the school district’s refusal to provide them with prior notice and to allow for exemption from such instruction. They ask for relief until their children are in seventh grade.

Massachusetts does have a statute that requires parents be given notice and the opportunity to exempt their children from curriculum which primarily involves human sexual education or human sexuality issues. The school system has declined to apply this statutory exemption to these plaintiffs on the basis that the materials do not primarily involve human sexual education or human sexuality issues.

A. Massachusetts Statewide Curricular Standards

The Commonwealth of Massachusetts enacted a comprehensive education reform bill in 1993, requiring the State Board of Education (SBE) to establish academic standards for core subjects. The statute mandates that the standards “be designed to inculcate respect for the cultural, ethnic and racial diversity of the commonwealth.”

The SBE established such standards, including a Comprehensive Health Curriculum Framework in 1999. That Framework establishes Learning Standards, which set different measurable goals for students in pre-kindergarten through grade 5, grades 6-8, and grades 9-12. The Health Framework also specifically notes that “public schools must notify parents before implementing curriculum that involves human sexuality.”

Within the Framework are Strands, and Strands have different components. Under the Social and Emotional Health Strand, there is a Family Life component, which states:

Students will gain knowledge about the significance of the family on individuals and society, and will learn skills to support the family, balance work and family life, be an effective parent, and nurture the development of children.

941 The Learning Standard for elementary school grades under the Family Life component states that children should be able to “[d]escribe different types of families.” The associated Learning Standard for pre-kindergarten through grade 5 recommends that children be able to “[d]escribe the concepts of prejudice and discrimination.”

There is also a Reproduction/Sexuality component under the Physical Health Strand. Within that component, the Learning Standards provide that by grade 5, students should be able to “[d]efine sexual orientation using the correct terminology (such as heterosexual, and gay and lesbian).”

These statewide academic standards do not purport to select particular instructional materials, but only to be a guide to assist others in that selection. Thus, there is no statewide regulation or policy providing for the use of the particular texts in dispute here.

By statute, the actual selection of books is the responsibility of a school’s principal, with the approval of the superintendent of schools. We assume these books were chosen locally subject to the terms of that statute. Plaintiffs allege in their complaint that Lexington school officials began integrating books like these into their elementary school’s curriculum at the behest of gay rights advocates. In 1996, the Massachusetts legislature adopted a parental notification statute to be implemented by schools starting with the 1997-1998 school year. Mass. Gen. Laws ch. 71, §32A. Section 32A requires school districts to provide parents with notice of and an opportunity to exempt their children from “curriculum which primarily involves human sexual education or human sexuality issues.” The Commissioner of Education, in an advisory opinion guiding the implementation of the new law, noted that it was intended to apply to discrete curricular units, such as “any courses (typically, sex education or portions of a health education or science course), school assemblies or other instructional activities and programs.”¹⁷

B. The Parkers

David and Tonia Parker’s sons, Jacob and Joshua Parker, and Joseph and Robin Wirthlin’s son, Joseph Robert Wirthlin, Jr., are students at Estabrook Elementary School in Lexington, Massachusetts. Both families assert that they are devout Judeo-Christians and that a core belief of their religion is that homosexual behavior and gay marriage are immoral and violate God’s law.

In January 2005, when Jacob Parker (“Jacob”) was in kindergarten, he brought home a “Diversity Book Bag.” This included a picture book, Who’s in a Family?, which depicted different families, including single-parent families, an extended family, interracial families, animal families, a family without children, and—to the concern of the Parkers—a family with two dads and a family with two moms. The book concludes by answering the question, “Who’s in a942 family?”: “The people who love you the most!” The book says nothing about marriage.

The Parkers were concerned that this book was part of an effort by the public schools “to indoctrinate young children into the concept that homosexuality and homosexual relationships or marriage are moral and acceptable behavior.” Such an effort, they feared, would require their sons to affirm a belief inconsistent with their religion. On January 21, 2005, they met with Estabrook’s principal, Joni Jay (“Jay”), to request that Jacob not be exposed to any further discussions of homosexuality. Principal Jay disagreed that the school had any obligation under section 32A to notify parents in advance of such class discussions. In March 2005, the Parkers repeated their request that “no teacher or adult expose [Jacob] to any materials or discussions featuring sexual orientation, same-sex unions, or homosexuality without notification to the Parkers and the right to ‘opt out,’ ” this time including in their communication the then-Superintendent of Lexington’s schools, William Hurley (“Hurley”), and two other district-wide administrators. This request was met with the same response. A further meeting to discuss these issues was held at Estabrook on April 27, 2005, which resulted in Mr. Parker’s arrest when he refused to leave the school until his demands were met.

As the 2005-2006 school year began, Paul Ash (“Ash”), the current Superintendent, released a public statement explaining the school district’s position that it would not provide parental notification for “discussions, activities, or materials that simply reference same-gender parents or that otherwise recognize the existence of differences in sexual orientation.” When Jacob entered first grade that fall, his classroom’s book collection included Who’s in a Family? as well as Molly’s Family, a picture book about a girl who is at first made to feel embarrassed by a classmate because she has both a mommy and a mama but then learns that families can come in many different varieties. In December 2005, the Parkers repeated their request for advance notice, which Superintendent Ash again denied.

C. The Wirthlins

We turn to the other plaintiff family.

In March 2006, an Estabrook teacher read aloud King and King to her second grade class, which included Joseph Robert Wirthlin, Jr. (“Joey”). This picture book tells the story of a prince, ordered by his mother to get married, who first rejects several princesses only to fall in love with another prince. A wedding scene between the two princes is depicted. The last page of the book shows the two princes kissing, but with a red heart superimposed over their mouths. There is no allegation in the complaint that the teacher further discussed the book with the class. That evening, Joey told his parents about the book; his parents described him as “agitated” and remembered him calling the book “so silly.” Eventually the Wirthlins were able to secure a meeting with the teacher and Jay on April 6, 2006, to object to what they considered to be indoctrination of their son about gay marriage in contravention of their religious beliefs. Jay reiterated the school district’s position that no prior notice or exemption would be given.

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D. Procedural History

On April 27, 2006, the Parkers and the Wirthlins filed suit on behalf of themselves and their children in federal district court against Hurley, Ash, Jay, and Joey Wirthlin’s teacher, as well as the town of Lexington, the members of its school board, and other school district administrators.

The complaint alleges that the public schools are systematically indoctrinating the Parkers’ and the Wirthlins’ young children contrary to the parents’ religious beliefs and that the defendants held “a specific intention to denigrate the [families’] sincere and deeply-held faith.” They claim, under 42 U.S.C. §1983, violations of their and their children’s First Amendment right to the free exercise of religion and of their Fourteenth Amendment due process right to parental autonomy in the upbringing of their children, as well as of their concomitant state rights. They also assert a violation of the Massachusetts “opt out” statute.

The plaintiffs argue that their ability to influence their young children toward their family religious views has been undercut in several respects. First, they believe their children are too young to be introduced to the topic of gay marriage. They also point to the important influence teachers have on this age group. They fear their own inability as parents to counter the school’s approval of gay marriage, particularly if parents are given no notice that such curricular materials are in use. As for the children, the parents fear that they are “essentially” required “to affirm a belief inconsistent with and prohibited by their religion. The parents assert it is ironic, and unconstitutional under the Free Exercise Clause, for a public school system to show such intolerance towards their own religious beliefs in the name of tolerance.

For relief, the plaintiffs seek a declaration of their constitutional rights; damages; and an injunction requiring the school (1) to provide an opportunity to exempt their children from “classroom presentations or discussions the intent of which is to have children accept the validity of, embrace, affirm, or celebrate views of human sexuality, gender identity, and marriage constructs,” (2) to allow the parents to observe any such classroom discussions, and (3) to not present any “materials graphically depicting homosexual physical contact” to students before the seventh grade.

The parties have focused on the standard of justification the defendants must meet in the aftermath of Employment Division v. Smith. In Smith, the Court rejected the plaintiffs’ claim that they had unconstitutionally been denied unemployment benefits due to their violation of Oregon’s general criminal prohibition on the use of peyote, even though they had used the peyote for religious purposes. The Court found no free exercise objection to the criminal statute’s enforcement because, as it summarized in a later case, “a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”

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If Smith’s mere rationality test were the applicable standard, this case would easily be dismissed. Plaintiffs do not contest that the defendants have an interest in promoting tolerance, including for the children (and parents) of gay marriages. The Supreme Court has often referred to the role of public education in the preparation of students for citizenship. Given that Massachusetts has recognized gay marriage under its state constitution, it is entirely rational for its schools to educate their students regarding that recognition.

In plaintiffs’ favor, however, we will assume their case is not necessarily subject to this general Smith rule. First, the case does not arise in the same context as Smith. Plaintiffs have not engaged in conduct prohibited by state law or otherwise sought to avoid compliance with a law of general applicability. In contrast to the mere rationality standard for neutral laws of general applicability, Smith and its progeny require a compelling justification for any law that targets religious groups. This case also does not fit into the “targeting” category, as the Supreme Court has used the phrase. The school was not singling out plaintiffs’ particular religious beliefs or targeting its tolerance lessons to only those children from families with religious objections to gay marriage. The fact that a school promotes tolerance of different sexual orientations and gay marriage when such tolerance is anathema to some religious groups does not constitute targeting.

The Smith Court, in our view, left open other possible approaches. Smith, by its terms, also carved out an area of “hybrid situations.” Plaintiffs argue this is where their claim fits. Smith described such hybrid situations as involving free exercise claims brought in conjunction with other claims of violations of constitutional protections. Smith gave as one example of a companion claim “the right of parents…to direct the education of their children,” citing to Pierce v. Society of Sisters and Wisconsin v. Yoder.

What the Court meant by its discussion of “hybrid situations” in Smith has led to a great deal of discussion and disagreement. Observers debate whether Smith created a new hybrid rights doctrine, or whether in discussing “hybrid situations” the Court was merely noting in descriptive terms that it was not overruling certain cases such as Pierce and Yoder. Courts and commentators also disagree over how strong the companion constitutional claim must be to establish a hybrid situation: whether, for example, the associated claim must be independently viable, or whether it is enough for the claim to be “colorable.” Yet another debate is whether such “hybrid” cases automatically subject the governmental defendant to the compelling state interest test. Without entering the fray over the meaning and application of Smith’s “hybrid situations” language, we approach the parents’ claims as the Court did in Yoder. In that case, the Court did not analyze separately the due process and free exercise interests of the parent-plaintiffs, but rather considered the two claims interdependently, given that those two sets of interests inform one other.

Plaintiffs’ opening premise is that their rights of parental control are fundamental rights. They rely on a Supreme Court decision recognizing a substantive due process right of parents “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville. Troxel is not so broad as plaintiffs assert. [T]he schooling cases cited in Troxel “evince the principle that945 the state cannot prevent parents from choosing a specific educational program.” Plaintiffs argue their request for notice and exemption is simply a logical extension of their parental rights under Meyer and Pierce, as reinforced by their free exercise rights.

Defendants respond that plaintiffs’ argument runs afoul of the general proposition that, while parents can choose between public and private schools, they do not have a constitutional right to “direct how a public school teaches their child.” That proposition is well recognized. Indeed, Meyer and Pierce specified that the parental interests they recognized would not interfere with the general power of the state to regulate education, including “the state’s power to prescribe a curriculum for institutions which it supports.”

Plaintiffs say, in response, that they are not attempting to control the school’s power to prescribe a curriculum. Nonetheless, we have found no federal case under the Due Process Clause which has permitted parents to demand an exemption for their children from exposure to certain books used in public schools.

The due process right of parental autonomy might be considered a subset of a broader substantive due process right of familial privacy. The other cases establishing privacy rights under the Due Process Clause pertain to such issues as the right to marry and the right to procreate, and are not relevant to plaintiffs’ claims. In sum, the substantive due process clause by itself, either in its parental control or its privacy focus, does not give plaintiffs the degree of control over their children’s education that their requested relief seeks. We turn then to whether the combination of substantive due process and free exercise interests give the parents a cause of action.

Preliminarily, we mark the distinction between the alleged burden on the parents’ free exercise rights and the alleged burden on their children’s. The right of parents “to direct the religious upbringing of their children,” is distinct from (although related to) any right their children might have regarding the content of their school curriculum. We start with the parents’ claim.

In the present case, the plaintiffs claim that the exposure of their children, at these young ages and in this setting, to ways of life contrary to the parents’ religious beliefs violates their ability to direct the religious upbringing of their children. We try to identify the categories of harms alleged. The parents do not allege coercion in the form of a direct interference with their religious beliefs, nor of compulsion in the form of punishment for their beliefs, as in Yoder. Nor do they allege the denial of benefits. Further, plaintiffs do not allege that the mere listening to a book being read violated any religious duty on the part of the child. There is no claim that as a condition of attendance at the public schools, the defendants have forced plaintiffs—either the parents or the children—to violate their religious beliefs. In sum there is no claim of direct coercion.

The heart of the plaintiffs’ free exercise claim is a claim of “indoctrination”: that the state has put pressure on their children to endorse an affirmative view of gay marriage and has thus undercut the parents’ efforts to inculcate their children with their own opposing religious views. The Supreme Court, we believe, has never utilized an indoctrination test under the Free Exercise Clause, much less in the public school context. The closest it has come is Barnette, a free speech946 case that implicated free exercise interests and which Smith included in its hybrid case discussion. In Barnette, the Court held that the state could not coerce acquiescence through compelled statements of belief, such as the mandatory recital of the pledge of allegiance in public schools. It did not hold that the state could not attempt to inculcate values by instruction, and in fact carefully distinguished the two approaches. We do not address whether or not an indoctrination theory under the Free Exercise Clause is sound. Plaintiffs’ pleadings do not establish a viable case of indoctrination, even assuming that extreme indoctrination can be a form of coercion.

First, as to the parents’ free exercise rights, the mere fact that a child is exposed on occasion in public school to a concept offensive to a parent’s religious belief does not inhibit the parent from instructing the child differently. A parent whose “child is exposed to sensitive topics or information [at school] remains free to discuss these matters and to place them in the family’s moral or religious context, or to supplement the information with more appropriate materials.” The parents here did in fact have notice, if not prior notice, of the books and of the school’s overall intent to promote toleration of same-sex marriage, and they retained their ability to discuss the material and subject matter with their children. Our outcome does not turn, however, on whether the parents had notice.

Turning to the children’s free exercise rights, we cannot see how Jacob’s free exercise right was burdened at all: two books were made available to him, but he was never required to read them or have them read to him. Further, these books do not endorse gay marriage or homosexuality, or even address these topics explicitly, but merely describe how other children might come from families that look different from one’s own. There is no free exercise right to be free from any reference in public elementary schools to the existence of families in which the parents are of different gender combinations.

Joey has a more significant claim, both because he was required to sit through a classroom reading of King and King and because that book affirmatively endorses homosexuality and gay marriage. It is a fair inference that the reading of King and King was precisely intended to influence the listening children toward tolerance of gay marriage. That was the point of why that book was chosen and used. Even assuming there is a continuum along which an intent to influence could become an attempt to indoctrinate, however, this case is firmly on the influence-toward-tolerance end. There is no evidence of systemic indoctrination. There is no allegation that Joey was asked to affirm gay marriage. Requiring a student to read a particular book is generally not coercive of free exercise rights.

On the facts, there is no viable claim of “indoctrination” here. Without suggesting that such showings would suffice to establish a claim of indoctrination, we note the plaintiffs’ children were not forced to read the books on pain of suspension. Nor were they subject to a constant stream of like materials. There is no allegation here of a formalized curriculum requiring students to read many books affirming gay marriage. The reading by a teacher of one book, or even three, and even if to a young and impressionable child, does not constitute “indoctrination.”

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Because plaintiffs do not allege facts that give rise to claims of constitutional magnitude, the district court did not err in granting defendants’ motion to dismiss the claims under the U.S. Constitution.

NOTES AND QUESTIONS

1. Rather than “analyz[ing] separately the due process and free exercise interests of the parent-plaintiffs,” the Parker court “considered the two claims interdependently, given that those two sets of interests inform one another.” How do those interests inform each other? Do you think the fact that the court analyzed them “interdependently,” rather than separately, made any real difference in the ultimate outcome of the case?

2. In addition to the parents’ constitutional interests, the Parker court also identified the two children—Joey and Jacob—as having their own free exercise rights at stake. Why were those claims unsuccessful?

3. As Parker describes, many states, including Massachusetts, have statutes that provide parents with opt-out rights with respect to sex education,¹⁸ although no court has ruled that parents have a federal constitutional right to opt their children out of such classes. Do you believe that such statutes reflect good policy? If you were a state legislator, would you vote in favor of them?

4. Under the applicable regulations, Massachusetts’ opt-out requirement for sex education does not cover “educational materials designed to promote tolerance, including materials recognizing differences in sexual orientation, if those materials are presented ‘without further instruction or discussion of the physical and sexual implications of homosexuality.’ ” What are the arguments in favor of, and against, providing greater parental opt-out rights for sex education materials than for “educational materials designed to promote tolerance”?

5. The Parker court declined to address “whether or not an indoctrination theory under the Free Exercise Clause is sound,” concluding that “plaintiffs’ pleadings do not establish a viable case of indoctrination, even assuming that extreme indoctrination can be a form of coercion.” Do you think such a theory could be sound? If so, what would constitute extreme indoctrination by a school?

PROBLEM

Utopia Middle School (UMS) has a reputation as one of the most outstanding and innovative middle schools in the state of East Dakota. One of the hallmarks of UMS is its focus on experiential learning through role-playing and simulations, consistent with educational research that suggests that this is a948 particularly effective way to teach middle-school students. For example, the seventh-grade biology classes participate in a mock medical school. Similarly, in the eighth-grade English classes, the students dress up as fictional characters from the books that they are reading. And by the same token, various simulations are threaded throughout the sixth-grade social studies course, which focuses on world history. During the fall unit on the Middle Ages, for instance, the sixth graders were grouped into different feudal manors and dressed up as lords, knights, and so on.

The present controversy has arisen from the sixth-grade social studies class’s one-week unit on Hinduism, which occurred last week. The sixth-grade social studies teacher, Stacy Sutton, used a variety of sources to teach about Hinduism, including readings from the textbook as well as handouts that were designed to facilitate role-playing. The first handout said that “during this module, you and your classmates are going to become Hindus.” Another handout then led the students through the process of choosing a Hindu name. Over the course of the week, the students learned about the basic beliefs of Hinduism, including the different Hindu gods and their symbols, the Hindu concept of the afterlife, and the various Hindu holidays. After the students had read about these concepts in their textbook, Ms. Sutton asked them to create a shrine to the Hindu god of their choice and also had each student recite a short portion of a Hindu prayer.

The culmination of the unit was a classroom celebration of Diwali, the Hindu New Year. During the Diwali celebration, Ms. Sutton had the students clean the classroom (because Hindus often start Diwali by cleaning their homes to make them ready for the Goddess Lakshmi) and had them each create a colorful flower decoration to make Lakshmi more likely to visit the class. During the Diwali celebration, Ms. Sutton had the students play a game to test who had the strongest knowledge of Hinduism. Some of the questions were true/false questions that included statements of religious faith (for example, “The universe exists in endless cycles of creation, preservation, and destruction.”). At the end of the Diwali celebration, Ms. Sutton had the students engage in the ritual of driving out Alaksmi, the goddess of bad luck, by making a lot of noise.

One student in the class, Isabel Ipson, expressed her discomfort to Ms. Sutton about participating in the unit. At the beginning of the unit, when the students received the initial handout, Isabel told Ms. Sutton that she did not want to become a Hindu; she was a devout Christian. Ms. Sutton responded that the unit was just a role-playing exercise and that the students would not actually become Hindus by participating in it. That night, Isabel’s parents also e-mailed Ms. Sutton to express their concern about the unit. Ms. Sutton wrote back and stated that this was only a role-playing unit. She added that the unit was consistent with the school’s general focus on role-playing to enhance student learning and pointed out that the students had been engaging in different simulations during the entire year. Isabel’s parents wrote back that they still did not feel comfortable with the unit, and that if it were possible for Ms. Sutton to exclude Isabel from the unit without drawing any attention to the situation, they would appreciate it. Ms. Sutton responded to indicate that there would be no way to remove Isabel in a nonobvious manner.

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At the end of the week, when Isabel’s parents found out that the students had recited lines from Hindu prayers, engaged in the above-described Hindu rituals, and stated (as part of the game to test their knowledge of Hinduism) that various tenets of Hinduism were “true,” they were furious. They called the principal of UMS to complain, and even stated that they were considering filing a lawsuit. The superintendent now wants your advice. First, what possible legal claims could Isabel’s parents bring, and what are their chances of success? Second, are there changes that UMS should make to the Hinduism unit to reduce the chances of liability in the future?

950

1 The nine books in the High School library were: Slaughter House Five, by Kurt Vonnegut, Jr.; The Naked Ape, by Desmond Morris; Down These Mean Streets, by Piri Thomas; Best Short Stories of Negro Writers, edited by Langston Hughes; Go Ask Alice, of anonymous authorship; Laughing Boy, by Oliver LaFarge; Black Boy, by Richard Wright; A Hero Ain’t Nothin’ But A Sandwich, by Alice Childress; and Soul On Ice, by Eldridge Cleaver. The book in the Junior High School library was A Reader for Writers, edited by Jerome Archer. Still another listed book, The Fixer, by Bernard Malamud, was found to be included in the curriculum of a 12th-grade literature course.

2 The Fixer, Laughing Boy, Black Boy, Go Ask Alice, and Best Short Stories by Negro Writers.

3 The Naked Ape and Down These Mean Streets.

4 Soul On Ice and A Hero Ain’t Nothin’ But A Sandwich.

5 A Reader for Writers. The reason given for this disposition was that all members of the Committee had not been able to read the book.

6 Slaughter House Five.

7 Laughing Boy.

8 Black Boy.

9 By “decisive factor” we mean a “substantial factor” in the absence of which the opposite decision would have been reached.

10 The second sentence in this quote is not our typo. The book actually does state that “[i]nside the rocks are caves,” instead of the other way around.

11 We exclude from our holding and analysis educational material subject to the prohibitions of the Religion Clauses of the First Amendment. Those clauses have a long, checkered, and unique history in the evolution of our constitutional doctrine.

12 By giving these examples, we do not imply that the writings of these authors (with the possible exception of The Merchant of Venice) have ever given offense to the same degree as the epithet set forth in Monteiro’s amended complaint. We recognize that the term “nigger,” as applied to blacks, is uniquely provocative and demeaning and that there is probably no word or phrase that could be directed at any other group that could cause comparable injury. At the pleading stage, however, it would be quite simple for a group or individual to claim that a particular term or idea is profane, insulting, and derogatory, or otherwise highly offensive or injurious, and to seek to proceed to trial on that basis.

13 See, e.g., Webster v. New Lenox Sch. Dist., 917 F.2d 1004 (7th Cir. 1990); Miles v. Denver Public Schools, 944 F.2d 773 (10th Cir. 1991); Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993); Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 723 (2d Cir. 1994); Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718 (8th Cir. 1998).

14 See Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 (4th Cir. 1998) (en banc); Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir. 1989); Cockrel v. Shelby County School District, 270 F.3d 1036 (6th Cir. 2005).

15 Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007).

16 A different situation would be presented if the purpose or primary effect of any accommodation were to be the advancement of plaintiffs’ religion. I see no evidence of such purpose or effect from the accommodation in this case.

17 That statute has been interpreted in an opinion letter by the Department of Education not to apply to educational materials designed to promote tolerance, including materials recognizing differences in sexual orientation, if those materials are presented “without further instruction or discussion of the physical and sexual implications of homosexuality.”

18 For a chart depicting the opt-out rights regarding sex education in the 50 states, see, e.g., Guttmacher Institute, State Policies in Brief: Sex and HIV Education (Mar. 1, 2013), http://www.guttmacher.org/statecenter/spibs/spib_SE.pdf. As of March 2013, 35 states and the District of Columbia allow parents to remove their children from sex (and HIV) education.

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The federal role in education flows from two types of legislation: antidiscrimination and spending. The first six chapters of this book addressed the various antidiscrimination statutes and need not be rehashed here. But as you may recall, the applicability of these statutes is dependent on the receipt of federal funds. Because all public school districts receive some form of federal funding, this condition is not particularly important in most cases. What is important are the additional requirements and goals beyond antidiscrimination that federal spending legislation sets.

The most notable federal spending legislation for public education is the Elementary and Secondary Education Act (ESEA), which was originally enacted in the 1960s as part of the federal War on Poverty and the effort to encourage districts to comply with Title VI’s racial discrimination prohibitions. Since then, Congress has reenacted the ESEA several times and, in recent decades, has attempted to spur education reform and close achievement gaps for disadvantaged students. One of the primary mechanisms for achieving this end has been through increased standardized testing and accountability for the results of those tests. The federal government’s role in holding states and districts accountable has effectuated a significant shift of power and influence to the federal government. This shift has generated heated ideological and practical battles between those who believe states and localities are best suited to exercise educational judgment and those who believe some states are incapable of independently remedying widespread inadequacies. Data generated through the ESEA over the past two decades has only further highlighted the existence of inadequacies and the inability or unwillingness of states to remedy them, which has, ironically, fueled demands for a return to local control and flexibility.

This chapter provides the broad framework for understanding this debate over the federal role in education, as well as the substantive reform agendas embedded in the ESEA. The chapter begins with a narrative on the history of the federal role in education and the ESEA. It then focuses on the major policies of the No Child Left Behind Act (NCLB), which was the 2002 reauthorization and952 amendment of the ESEA. While NCLB has since been replaced by the Every Student Succeeds Act (ESSA), the background on NCLB is crucial to understanding exactly what ESSA attempts to achieve and why. That background is followed by excerpts of the most important sections of the ESSA—those detailing academic standards, testing, accountability, teacher quality, school funding, limits on the federal role in education, and the powers of the Secretary of Education. The chapter concludes with a short overview of the law relating to the fair administration of tests.

A. A BRIEF OVERVIEW OF THE FEDERAL ROLE IN EDUCATION

Regina R. Umpstead, The No Child Left Behind Act: Is It an Unfunded Mandate or a Promotion of Federal Education Ideals?

37 J.L. & Educ. 193 (2008)

State and local governments have traditionally been responsible for providing education in the United States. Education is not mentioned in the U.S. Constitution and is, therefore, reserved to the states through the Tenth Amendment. The U.S. Supreme Court has declared that education is not a fundamental right even though it plays a vital role in our society. Most state constitutions require state governments to provide free public education, and state governments normally delegate this duty to local school districts. Thus, the states and their subordinate localities have the responsibility for and control over education under both tradition and law. For most of our nation’s history, local control has been the hallmark of educational governance, and the federal government has played a limited role. However, federal influence has grown substantially during the past sixty years, and most of this expansion has been accomplished through federal legislation passed under Congress’ Article 1, Section 8 spending power.

A. Laws Regulating Education: 1950s to Present

The 1950s mark the time when the federal government became increasingly involved in K-12 education. The 1954 landmark U.S. Supreme Court decision in Brown v. Board of Education and the 1957 launch of the Soviet Union’s first earth-orbiting satellite, Sputnik, set the stage for Congress’ enactment of the National Defense Education Act (NDEA) in 1958. The NDEA was the first in a series of acts passed by Congress using its Spending Clause power to influence the field of education.

In the 1960s, as part of the Great Society reforms, Congress passed several laws using its spending power in an attempt to eliminate poverty and racial953 inequality. These included Title VI of the Civil Rights Act of 1964, the Elementary and Secondary Education Act of 1965 (ESEA), and the Bilingual Education Act of 1968. It was during this era that the federal government became the biggest sponsor of educational reform, and the ESEA was the most significant of the educational legislation passed. Title I of this Act, which provided financial assistance to improve the educational opportunities for poor children, embodied the federal hopes for a better future. This legislation continues today in its reauthorized form, the No Child Left Behind Act of 2001.

This legislative trend continued into the 1970s with the passage of Title IX of the Education Amendments Act of 1972, Section 504 of the Rehabilitation Act of 1973, the Equal Educational Opportunities Act of 1974, and the Education for all Handicapped Children Act of 1975. During the past thirty years, Congress enacted fewer new education-related legislative initiatives, instead focusing on the reauthorization of prior acts. The two most prominent of these successively reauthorized acts have been the Elementary and Secondary Education Act of 1965 and the Education for all Handicapped Children Act of 1975, which was renamed the Individuals with Disabilities Education Act in 1990.

Through all of these initiatives, the federal government has assumed the role as a promoter of educational opportunity to students with enumerated “disadvantages,” such as those living in poverty, in need of special education, subject to discrimination based on race or sex, or learning English as a second language. To accomplish this goal, it has provided supplemental financial resources through categorical grants to states and localities to allow them to better service students’ special needs in the schools. In this manner, the federal government has been able to support its agenda of improving the educational quality for certain groups of students by offering funding only for specific programs and limiting its use to narrowly defined activities.

Over time, however, the federal government’s role has changed so that it now has a greater focus on aligning federal support with the overall national goals for the education of all students. These universal student goals are reflected in NCLB. NCLB is controversial because it expands coverage to all students without providing sufficient funding to pay for all costs associated with implementing its requirements.

C. Educational Funding in the [United States]

[I]t is also important to understand the magnitude of the financial commitment being made to public education in this country at the federal, state, and local levels. Public spending on K-12 education in the United States was $536 billion in 2004-05. State sources account for about 83 percent of the revenue spent on K-12 education—generally through a mix of property, sales, and income taxes. Federal sources account for approximately 8.3 percent of the revenue spent on education, and private funding, mostly for private schools, account for the other 8.9 percent. Overall, federal education spending in 2006 was $36 billion. In the fiscal year 2002, the year following NCLB’s enactment, federal education funding increased $4.7 billion—or 26 percent—over the954 previous year. After three years of growth, federal appropriations for education programs began to taper off in fiscal year 2004 and slowed in fiscal year 2005. Federal NCLB funding has held steady in 2005, 2006, and 2007, at $12.7 billion annually. Yet, because of the relatively small share of funding provided by the federal government, the increase in federal funding due to NCLB amounts to only about 2 percent of total K-12 appropriations.

B. THE NO CHILD LEFT BEHIND ACT

In 2002, the federal role in education drastically expanded with the enactment of the No Child Left Behind Act. While most of its specific provisions have been replaced by the Every Student Succeeds Act, it transformed the relationship between the U.S. Department of Education and state and local school authorities. It also offered the leverage for the Secretary of Education to later pursue new policies through his administrative powers. The James Ryan excerpt identifies NCLB’s major policy agendas and requirements.

James E. Ryan, The Perverse Incentives of the No Child Left Behind Act

79 N.Y.U. L. Rev. 932 (2004)

A. Background

Supported by an overwhelming majority in Congress and signed into law by President Bush in 2002, the No Child Left Behind Act (NCLBA) is remarkably ambitious and unusually intrusive. The NCLBA revises the Elementary and Secondary Education Act, which was first enacted in 1965 and has been reauthorized periodically ever since. The most important and well-known component of the Elementary and Secondary Education Act is Title I.

In reauthorizing Title I in 1994 through the passage of the Improving America’s Schools Act (IASA), Congress and President Clinton incorporated the core ideas of standards-based reform. In doing so, they fundamentally changed the nature of Title I. Instead of providing funds to support remedial instruction for disadvantaged students, Title I funds now had to be used to create standards for all students. In order to receive Title I funds, states had to create “challenging” content and performance standards in at least reading and math, develop assessments that were aligned with those standards, and formulate plans to assist and ultimately sanction failing schools. Importantly, standards and assessments for Title I schools had to be the same as those established for all other schools within a state. In this way, the federal government hoped to ensure that states would hold all students to the same high expectations and hold all schools, regardless of their student population, accountable for failure.

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B. Key Provisions

The No Child Left Behind Act follows the same basic approach as the IASA, but it establishes more ambitious goals and places greater constraints on the states. States must still develop “challenging” content and performance standards, now not only in reading and math, but also in science. States must still use assessments that are aligned with those standards, and must hold schools and school districts accountable for failing to meet ambitious achievement goals.

The most significant changes have to do with teachers, testing, and accountability. As for teachers, the NCLBA requires that Title I schools hire only “highly qualified” teachers for all subjects and that veteran teachers in such schools demonstrate that they are “highly qualified” by 2005-6. The Act also reaches beyond Title I schools and requires that all teachers of “core academic subjects” in non-Title I schools must be “highly qualified” by 2005-6.

As for testing and accountability, whereas the IASA required testing in math and reading at three points in a student’s school career, the NCLBA requires annual testing in reading and math in grades three through eight. At least one more test in reading and math must be given in grades ten through twelve. Beginning in 2007-8, students must also be tested in science at least three times between grades three through twelve.

Test scores are the fuel that makes the NCLBA run. Scores are tabulated for schools in the aggregate and must be disaggregated for a number of subgroups, including migrant students, disabled students, English-language learners, and students from all major racial, ethnic, and income groups. All of these scores are then used to determine whether schools are making “adequate yearly progress.” Adequate yearly progress (AYP), in turn, is the linchpin of the NCLBA.

Adequate yearly progress is tied to whether a sufficient percentage of students are performing proficiently on state tests. The NCLBA requires states to bring all students to the proficient level within twelve years of the Act’s passage (i.e., by 2014), and states must ensure that their definitions of adequate yearly progress will enable the ultimate twelve-year goal to be met. To accomplish this, states must set a proficiency goal each year, and that percentage must rise periodically so that by 2014, it hits 100%. For a school to make adequate yearly progress, the student population as a whole, as well as each identified subgroup of students, must meet the same proficiency goal. For example, if in the year 2004-5, the state determines that 65% of students must be “proficient” on the tests, 65% of all the students within a school and 65% of the students within each subgroup (e.g., disabled students, poor students, minority students) must be performing proficiently for a school to be making adequate yearly progress. Adequate yearly progress is thus less about yearly achievement gains than it is about hitting uniform benchmarks. All states must set a uniform bar for achievement for all schools and all subgroups of students within a school.

Although the Act is quite strict in defining AYP, it is remarkably loose with regard to state standards and tests. (The basic reason for this structure is the continued resistance to national standards and tests.) States are free to determine their own standards, to create their own tests, and to determine for themselves the scores that individual students must receive in order to be deemed956 “proficient.” The harder the tests or the higher the scores needed to be deemed proficient, the harder it will be for schools to meet the NCLBA’s definition of adequate yearly progress. For the same reasons, some states have much farther to travel than others in order to meet the goal of 100% proficiency. The starting percentages in Massachusetts, for example, were roughly 40% proficiency in reading and 20% proficiency in math. In Colorado, the starting percentages ranged, depending on the grade level, from roughly 75%-90% in reading and 50%-80% in math.

The Act requires all schools within a state, regardless of whether they receive Title I funding, to make adequate yearly progress. The stricter accountability mechanisms, however, are reserved for schools receiving Title I funding. Those schools that receive federal funding and fail to make adequate yearly progress are identified as in need of improvement. They are also subject to a range of progressively more serious actions. After two consecutive years of failure, schools must develop a plan for improvement and are supposed to receive “technical” assistance. Students in those schools are also allowed to choose another public school, including a charter school, within the same district. After three years, students who have not already departed for greener pastures must be provided with tutoring services from an outside provider, public or private.

Those schools that fail to make AYP for four consecutive years must take one of several measures, including replacing school staff or instituting a new curriculum, and those that fail for five years in a row must essentially surrender control to the state government, which can reopen the school as a charter school, turn over management to a private company, or take over the school itself.

NOTES AND QUESTIONS

1. Was the NCLB the next logical step in the gradual expansion of the federal role in education, or did it drastically redefine the federal-state relationship, including an incursion into the state role in education? What are the most important new aspects of the NCLB in terms of improving education?

2. Has the ESEA imposed too many obligations on states for too little money? What level of financial involvement should the federal government have in schools: just enough to encourage the adoption of federal policy or enough to ensure a particular quality of education?

3. NCLB also included a school transfer provision. Students who attended a school that failed to make adequate yearly progress (AYP) for two consecutive years had the right to transfer to another school in their district that was making AYP. If there was no such school in the district, the student could theoretically transfer to another school district, but the receiving school district was not obligated to accept the student. See Jane Dimyan-Ehrenfeld, Making Lemonade: Restructuring the Transfer Provisions of the No Child Left Behind Act, 16 Geo. J. on Poverty L. & Pol’y 217 (2009). While civil rights advocates hoped that these957 provisions would facilitate both the intra- and interdistrict integration, for a variety of reasons, very few students were able to exercise their transfer options. See Meredith P. Richards et al., Century Foundation, Can NCLB Choice Work? Modeling the Effects of Interdistrict Choice on Student Access to Higher-Performing Schools 3 (2011) (less than 1 percent of eligible students transfer); Goodwin Liu & William L. Taylor, School Choice to Achieve Desegregation, 74 Fordham L. Rev. 791, 795 (2005) (criticizing the lack of a mandate in the transfer provision).

4. NCLB was subject to a number of critiques. See, e.g., James E. Ryan, The Perverse Incentives of the No Child Left Behind Act, 79 N.Y.U. L. Rev. 932, 934 (2004) (concluding that the Act would incentivize states to dumb-down their academic standards and manipulate passing rates on standardized tests); Linda Darling-Hammond, Evaluating No Child Left Behind, Nation, May 21, 2007 (arguing that the Act undermined quality instruction); Peter Schrag, High Stakes Are for Tomatoes, Atlantic Monthly, Aug. 2000 (arguing that the Act incentivized teaching to the test); Derek W. Black, The Congressional Failure to Enforce Equal Protection Through the Elementary and Secondary Education Act, 90 B.U. L. Rev. 313 (2010) (arguing the Act did not sufficiently focus on inequality of opportunity and instead penalized its effects); Derek W. Black, Civil Rights, Charter Schools, and Lessons to Be Learned, 64 Fla. L. Rev. 1723, 1752–1756 (2012) (arguing the Act set unrealistic goals); Pontiac v. Dep’t of Educ., 584 F.3d 253 (6th Cir. 2009) (plaintiffs challenging the Act as an unfunded mandate). Subsequent studies have shown several of these critiques to be correct. See, e.g., Paul E. Peterson & Frederick Hess, Few States Set World-Class Standards, 8 Educ. Next 70, 71–73 (2008) (finding many states had lowered their standards).

5. While the Act placed numerous obligations on states and districts, it did not explicitly create an individual cause of action and courts generally refused to infer one. See, e.g., Fresh Start Acad. v. Toledo Bd. of Educ., 363 F. Supp. 2d 910 (W.D. Ohio 2005); Ass’n of Cmty. Org. for Reform Now v. N.Y. City Dep’t of Educ., 269 F. Supp. 2d 338 (S.D.N.Y. 2003). As a result, the Act generated relatively little litigation. The two exceptions are in regard to the Act’s “highly qualified teacher” requirement and the notion that the Act amounts to an unfunded mandate. As to the first issue, California was in violation of the Act’s “highly qualified teacher” requirement and the Ninth Circuit held that the Department of Education’s attempt to excuse this failure through regulatory action was invalid. Renee v. Duncan, 623 F.3d 787 (9th Cir. 2010). That decision, however, was rendered moot when Congress passed a statutory fix that codified the Department’s watered-down definition of what it means to comply with the highly qualified teacher requirement. 124 Stat. 3521 (2010); see also Renee, 686 F.3d at 1008 (ruling in California’s favor after the congressional fix). As to the second issue of unfunded mandates, the judicial rationales and outcomes were muddled, but states and districts were generally blocked from pursuing their theory. See Pontiac v. Spellings, No. 05-CV-71535, 2005 WL 3149545 (E.D. Mich. Nov. 23, 2005) (rejecting plaintiffs’ claim); Pontiac v. U.S. Dep’t of Educ., 584 F.3d 253 (6th Cir. 2009) (evenly divided en banc panel); Connecticut v. Duncan, 612 F.3d 107 (2d Cir. 2010) (holding plaintiffs lacked standing).

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C. STATUTORY WAIVERS

The ESEA was due for reauthorization since the beginning of the Obama Administration. When Congress finally passed the Every Student Succeeds Act in December 2015, it was several years too late. In the years following NCLB’s passage, state and local education agencies had proven unable to comply with the NCLB’s requirements and NCLB’s 2014 deadline for full proficiency was fast approaching. As an interim measure, Secretary of Education Duncan waived NCLB’s requirements in exchange for states adopting a new set of education policies. The following excerpt details that process and the events that precipitated it.

Derek W. Black, Federalizing Education by Waiver?

68 Vand. L. Rev. 607, 647–659 (2015)

As funding legislation, NCLB was set to automatically expire after a period of years and required reauthorization in 2007. States’ progress, or lack thereof, toward full proficiency on standardized tests during the intervening years made it clear that the Act needed more than a basic reauthorization. To avoid labeling an overwhelming majority of the nation’s schools as failures that were subject to mandatory sanctions, NCLB needed a substantial rewrite. The demands of the Great Recession and the debate over the Affordable Care Act reduced an otherwise crucial reauthorization to an afterthought. Two years into his term, President Obama finally issued a detailed blueprint for reauthorization of the Elementary and Secondary Education Act (“ESEA”). The terms of the blueprint mirrored the policies that the Administration had already been pursuing through a competitive grant process funded through economic stimulus funds.

Continued fights over health care and the economy and a shift of power in Congress prevented reauthorization from moving forward. Relations between the Administration and Congress grew so acrimonious that the Administration effectively gave up on any major legislative effort in any area, indicating it would take administrative action to achieve its policy ends. In education, this meant using the widespread occurrence of NCLB noncompliance and the Secretary of Education’s waiver authority to promote policies consistent with the Administration’s previously announced reauthorization policies. Thus, rather than an escape clause for states, waivers became a mechanism for achieving the Administration’s affirmative policy objectives that could not be achieved elsewhere. In short, the waiver process became a substitute for the legislative process.

A. Setting the Stage: Race to the Top Grants

In February 2009, Congress authorized $787.2 billion to stimulate and stabilize the failing economy. Ninety-seven billion dollars was allocated to cover states’ and local districts’ education budget shortfalls and to prevent the massive layoff of teachers. A small but significant slice of those education funds959 were reserved for competitive grants. The Secretary of Education was authorized to use the funds to foster educational innovation and improvement. The authorizing legislation deferred to the Secretary regarding the criteria by which state applications would be evaluated.

The first of these competitive grant programs was the $4.35 billion Race to the Top Fund (“RTT”). The Department indicated that it would use RTT to spur four innovations and reforms: “Adopting standards and assessments that prepare students to succeed in college and the workplace and to compete in the global economy; Building data systems that measure student growth and success, and inform teachers and principals about how they can improve instruction; Recruiting, developing, rewarding, and retaining effective teachers and principals, especially where they are needed most; and Turning around our lowest-achieving schools.”

States that did not commit to these strategies would be ineligible for grants. The workplace and college standards requirement [was designed to] incentiviz[e] states to adopt the Common Core standards or curriculum. In fact, all twelve states that received a[n] RTT grant adopted or promised to adopt the Common Core. To be fair, several states had already begun the process of adopting the Common Core, but the Department clearly took a side in the debate. The data and teacher effectiveness requirements were, likewise, designed to foster another specific agenda: basing teacher hiring, promotion, retention, and compensation on value-added assessments of teaching. The fourth requirement was part escape clause, part new agenda. The school turnaround requirement diverged from the NCLB approach of sanctioning all schools that fail to meet full proficiency, instead only requiring states to focus their turnaround strategies on the very lowest performing schools. While small in size, RTT proved effective in spurring significant change.

B. The Administration’s Blueprint for Reauthorizing the Elementary and Secondary Education Act

[In 2010], the Administration released A Blueprint for Reform: The Reauthorization of the Elementary and Secondary Education Act. It summarized its four goals as “(1) Improving teacher and principal effectiveness; (2) Providing information to families to help them evaluate and improve their children’s schools; (3) Implementing college- and career-ready standards; and (4) Improving student learning and achievement in America’s lowest-performing schools by providing intensive support and effective interventions.” For the purposes of this Article, two points are crucial. First, the Administration itself directly tied the blueprint to its prior RTT policy goals, stating that the blueprint was “[m]odeled after the Race to the Top.” In fact, the four goals of reauthorization are almost identical to the conditions placed on RTT applications. Second, the Administration indicated that the blueprint goals were a hard break from the substance and structure of NCLB. President Obama stated: “My Administration’s blueprint for reauthorization of the Elementary and Secondary Education Act is not only a plan to renovate a flawed law, but also an outline for a re-envisioned federal role in education.”

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[Due to the demands of the failing economy and bitter fights over health care reform and the federal budget, Congress never took any serious steps to reauthorize the ESEA.] At that point, the Administration gave up on legislation, indicating it would not wait on Congress [and would instead] pursue policy changes through executive action.

C. The Conditions of Waiver

By the fall of 2011, more than eighty percent of the nation’s schools were set to be labeled as failing. Under NCLB, those education systems would be subject to a series of escalating and harsh consequences, including school closings, district restructuring, and fund termination. Those sanctions would have been a practical and political disaster for both the schools and the U.S. Department of Education. The best solution—altering the legislation through reauthorization—was off the table at that point. The only viable option was for the Department to use its waiver power.

NCLB provides that “the Secretary may waive any statutory or regulatory requirement of this chapter for a State educational agency, local educational agency, Indian tribe, or school through a local educational agency, that…requests a waiver.” In other words, the Secretary is free to waive all of the accountability, teacher and testing requirement provisions that were the hallmark of NCLB. A state that desires a waiver must “submit a waiver request” that specifically identifies those statutory or regulatory provisions of NCLB for which it is requesting a waiver and explain how a waiver will “(i) increase the quality of instruction for students; and (ii) improve the academic achievement of students.” It must also set “measurable educational goals” and the methods for measuring and meeting those goals.

In September 2011, Secretary Arne Duncan invited states to apply for waivers or request flexibility. He also announced the Administration’s intent to break course from NCLB because too many circumstances had changed since its passage. First, state-level responses to RTT and movement toward the Common Core had demonstrated that better reforms were possible. He remarked that these reforms “were not anticipated when the No Child Left Behind Act of 2001 (NCLB) was enacted nearly a decade ago.” Second, NCLB’s approach simply does not work. He explained: “[I]t inadvertently encouraged some States to set low academic standards, failed to recognize or reward growth in student learning, and did little to elevate the teaching profession or recognize the most effective teachers.” He would use the waiver process to “help ensure that Federal laws and policies can support these [new] reforms and not hinder State and local innovation aimed at increasing the quality of instruction and improving student academic achievement.”

The Secretary was crystal clear regarding what a state must do to receive a waiver: comply with his conditions. First, states must adopt “college- and career-ready expectations for all students in…at least reading/language arts and mathematics” and develop assessments of that curriculum that “measure student growth.” Second, states “must develop and implement a system of differentiated recognition, accountability, and support for all [schools],” which means961 setting differentiated and achievable annual measurable goals and focusing turnaround strategies on the lowest performing schools and those with the highest achievement gaps. Third, states and local districts must adopt “teacher and principal evaluation and support systems” that “meaningfully differentiate [teacher] performance” into at least three levels based on “student growth” data and other factors. States and districts must use that data to “evaluate teachers and principals on a regular basis” and “inform personnel decisions.” Finally, states must “remove duplicative and burdensome reporting requirements that have little or no impact on student outcomes.”

These conditions mirrored the RTT conditions and the reauthorization blueprint. The Department’s waiver guidance documents are simply a solidification of the broad concepts first articulated in RTT and the blueprint, with the Administration offering nuance and detail regarding how states should measure student growth, evaluate teachers, and focus on failing schools. And by this time, the external work on developing the Common Core had significantly advanced, making it the de facto means by which to comply with the waiver requirement of college- and career-ready standards.

Two things, however, were very different. First, the conditions were no longer part of a voluntary grant program or negotiated political process; they were unilateral executive prerogative. Second, these conditions supplanted existing law with a new approach. NCLB’s standardized testing goals, demographic group accountability, teacher certification requirements, and punitive sanctions would all be gone. Also gone would be states’ wide discretion over selecting and measuring academic standards.

D. A Rushed and Coercive Process

By the end of 2012, forty-five states had submitted requests for a waiver or flexibility, and the Department later approved all but two. The process involved quick but intense interactions between states and the Department regarding the changes the waiver conditions would require for teachers and curriculum standards. Iowa experienced one of the most contentious interactions. According to local officials, complying with the Department’s teacher evaluation requirements—categorizing teachers by three levels of effectiveness and basing employment decisions on them—presented a direct conflict with state law on teachers’ rights. Some other states had taken executive action to meet the Department’s conditions, but Iowa’s governor indicated he lacked the legal authority to unilaterally implement such a teacher evaluation system. The Department’s conditions would require legislative amendments. Iowa’s legislature then indicated that such a significant change to teachers’ rights would require serious study and consideration, which precluded the immediate response the Department was demanding. As a result, the Department denied Iowa’s waiver application. Confronting similar problems, a few other states chose to forgo submitting a waiver application that year.

[T]he Secretary’s leverage was indisputable. All but a couple of states moved at breakneck pace—by legislation or executive action—to make the curriculum and teacher changes necessary to meet the Department’s conditions.962 [B]ut once the change set in, so did the backlash. Teachers and affiliate organizations in several states subsequently filed lawsuits challenging the changes as violations of teachers’ state and federal constitutional rights. Likewise, a national grassroots movement against the Common Core began forming in late 2013 and early 2014. By the summer of 2014, some states had passed legislation to repeal the prior executive or legislative action adopting it; others were considering following suit; and others were embroiled in litigation challenging whether the adoption of the Common Core violated state law.

NOTES AND QUESTIONS

1. Did these waivers fundamentally change the Act and how it operates? If so, were they an improvement?

2. Does the Secretary’s power to waive certain statutory requirements include the power to impose new requirements or changes to the Act? How likely is it that Congress intended to extend such a power to the Secretary? What problems might arise from extending such a power to the Secretary present?

3. In August 2014, Louisiana Governor Bobby Jindal filed suit against the U.S. Department of Education, challenging its exercise of authority regarding Race to the Top and NCLB waivers. The district court denied the Department’s motion to dismiss, Jindal v. U.S. Dep’t of Educ., 2015 WL 854132 (M.D. La. Feb. 26, 2015), but later denied Jindal’s motion for a preliminary injunction, finding that Jindal had “failed to establish the threat of irreparable injury or that there is a substantial likelihood of success on the merits as to both his statutory and constitutional challenges to the RTT and ESEA flexibility programs.” Jindal v. U.S. Dep’t of Educ., 2015 WL 5474290, at *16 (M.D. La. Sept. 16, 2015). Less than three months after the last decision in Jindal, Congress passed the Every Student Succeeds Act, mooting the practical substantive dispute between Louisiana and the Department over the Common Core.

4. As the following excerpts will reveal, the Every Student Succeeds Act severely restricts various powers of the Secretary of Education, including the waiver power. It also places several issues, including the Common Core and teacher regulation, off-limits for the Department.

D. THE EVERY STUDENT SUCCEEDS ACT

By 2014, nearly everyone had given up on the idea that the ESEA would be reauthorized during the Obama Administration. States and districts consigned themselves to complying with the new requirements of their NCLB waiver process. Having secured initial acquiescence with the waiver process from nearly every state, the Secretary, in subsequent years, began indicating he would give states additional time to comply with the conditions of their waivers and also offer multi-year waivers.

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In early 2015, when there was no pressure to reauthorize ESEA, Republican Senator Lamar Alexander (chair of the Senate committee dealing with education) and Democratic Senator Patty Murray took the surprising step of going into closed-door sessions to develop a bipartisan plan to reauthorize ESEA. In a relatively short time, they produced a bill and moved it through the U.S. Senate Committee on Health, Education, Labor & Pensions that summer with a unanimous vote. It received a full Senate vote shortly thereafter, passing by a vote of 81-17. Over the next few months, they worked on reconciling the Senate bill with a House bill that differed significantly. By December, they agreed on a reconciliation bill titled the Every Student Succeeds Act. President Obama signed it into law on December 10, 2015.

The entire Act totals 391 pages—far too many to reprint here. Its topics include the basic education program to improve educational opportunity for low-income students; improving teaching quality; language instruction for English Language Learners and immigrant students; charter and magnet schools; school innovation; education programs for Native Americans; and support for homeless students. The following excerpts focus primarily on Title I of the Act, which is the largest and funds supplemental educational opportunities for low-income students. In exchange for those funds, Title I requires states to adopt education programs that affect the education of nearly all public school students. Following Title I are shorter excerpts that address teacher quality (Title II), along with a few omnibus rules regarding the Department of Education’s power and a few pilot programs of significance.

Section 1111 of the Act appears first below. It describes the process by which states will develop and submit their plans for complying with the Act, along with the Secretary’s role in evaluating those plans. More particularly, it requires that states develop academic standards, assess students on those standards, set achievement goals, and intervene in and support those schools in need of improvement.

Every Student Succeeds Act, Pub. L. No. 114-95

129 Stat 1802, December 10, 2015

Title I—Improving Basic Programs Operated by State and Local Educational Agencies

Sec. 1111 State Plans

(a) FILING FOR GRANTS.—

(1) IN GENERAL.—For any State desiring to receive a grant under this part, the State educational agency shall file with the Secretary a plan that is—

(A) developed by the State educational agency with timely and meaningful consultation with the Governor, members of the State legislature and State board of education (if the State has a State board of education), local educational agencies (including964 those located in rural areas), representatives of Indian tribes located in the State, teachers, principals, other school leaders, charter school leaders (if the State has charter schools), specialized instructional support personnel, paraprofessionals, administrators, other staff, and parents; and

(B) is coordinated with other programs under this Act, [including the Individuals with Disabilities Education Act, the Rehabilitation Act of 1973, and the McKinney-Vento Homeless Assistance Act].

…

(4) PEER REVIEW AND SECRETARIAL APPROVAL.—

(A) IN GENERAL.—The Secretary shall—

(i) establish a peer-review process to assist in the review of State plans;

(ii) establish multidisciplinary peer-review teams [that]…are representative of [the various relevant constituencies and research fields]

…

(v) approve a State plan not later than 120 days after its submission, unless the Secretary meets the requirements of clause (vi);

(vi) have the authority to disapprove a State plan only if the

(I) The Secretary (aa) determines how the State plan fails to meet the requirements of this section; (bb) immediately provides to the State, in writing, notice of such determination, and the supporting information and rationale to substantiate such determination; (cc) offers the State an opportunity to revise and resubmit its State plan, and provides the State technical assistance…in meeting the requirements of this section; [and] a hearing, unless the State declines the opportunity for such hearing; and

(II) the State does not revise and resubmit its State plan; or in a case in which a State revises and resubmits its State plan after a hearing is conducted under subclause (I), or after the State has declined the opportunity for such a hearing, the Secretary determines that such revised State plan does not meet the requirements of this section.

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(b) CHALLENGING ACADEMIC STANDARDS AND ACADEMIC ASSESSMENTS.—

(1) CHALLENGING STATE ACADEMIC STANDARDS.—

(A) IN GENERAL.—Each State, in the plan it files under subsection (a), shall provide an assurance that the State has965 adopted challenging academic content standards and aligned academic achievement standards (referred to in this Act as ‘challenging State academic standards’), which achievement standards shall include not less than 3 levels of achievement, that will be used by the State, its local educational agencies, and its schools to carry out this part. A State shall not be required to submit such challenging State academic standards to the Secretary.

(B) SAME STANDARDS.—Except as provided in subparagraph (E), the standards required by subparagraph (A) shall—(i) apply to all public schools and public school students in the State; and (ii) with respect to academic achievement standards, include the same knowledge, skills, and levels of achievement expected of all public school students in the State.

(C) SUBJECTS.—The State shall have such academic standards for mathematics, reading or language arts, and science, and may have such standards for any other subject determined by the State.

(D) ALIGNMENT.—

(i) IN GENERAL.—Each State shall demonstrate that the challenging State academic standards are aligned with entrance requirements for credit-bearing coursework in the system of public higher education in the State and relevant State career and technical education standards.

(ii) RULE OF CONSTRUCTION.—Nothing in this Act shall be construed to authorize public institutions of higher education to determine the specific challenging State academic standards required under this paragraph.

(E) ALTERNATE ACADEMIC ACHIEVEMENT STANDARDS FOR STUDENTS WITH THE MOST SIGNIFICANT COGNITIVE DISABILITIES.—

(i) IN GENERAL.—The State may, through a documented and validated standards-setting process, adopt alternate academic achievement standards for students with the most significant cognitive disabilities, provided those standards—(I) are aligned with the challenging State academic content standards under subparagraph (A); (II) promote access to the general education curriculum, consistent with the Individuals with Disabilities Education Act; (III) reflect professional judgment as to the highest possible standards achievable by such students; (IV) are designated in the individualized education program developed under section 614(d)(3) of the Individuals with Disabilities Education Act for each such student as the academic achievement standards that will be used for the student; and (V) are aligned to ensure that a student who meets the alternate academic achievement standards is on track to pursue966 postsecondary education or employment, consistent with the purposes of Public Law 93–112, as in effect on July 22, 2014.

(ii) PROHIBITION ON ANY OTHER ALTERNATE OR MODIFIED ACADEMIC ACHIEVEMENT STANDARDS.—A State shall not develop, or implement for use under this part, any alternate academic achievement standards for children with disabilities that are not alternate academic achievement standards that meet the requirements of clause (i).

(F) ENGLISH LANGUAGE PROFICIENCY STANDARDS.—Each State plan shall demonstrate that the State has adopted English language proficiency standards that—(i) are derived from the 4 recognized domains of speaking, listening, reading, and writing; (ii) address the different proficiency levels of English learners; and (iii) are aligned with the challenging State academic standards.

(G) PROHIBITIONS.—

(i) STANDARDS REVIEW OR APPROVAL.—A State shall not be required to submit any standards developed under this subsection to the Secretary for review or approval.

(ii) FEDERAL CONTROL.—The Secretary shall not have the authority to mandate, direct, control, coerce, or exercise any direction or supervision over any of the challenging State academic standards adopted or implemented by a State.

(H) EXISTING STANDARDS.—Nothing in this part shall prohibit a State from revising, consistent with this section, any standards adopted under this part before or after the date of enactment of the Every Student Succeeds Act.

(2) ACADEMIC ASSESSMENTS.—

(A) IN GENERAL.—Each State plan shall demonstrate that the State educational agency, in consultation with local educational agencies, has implemented a set of high-quality student academic assessments in mathematics, reading or language arts, and science. The State retains the right to implement such assessments in any other subject chosen by the State.

(B) REQUIREMENTS.—The assessments under subparagraph (A) shall—

(i) except as provided in subparagraph (D), be the same academic assessments used to measure the achievement of all public elementary school and secondary school students in the State; and administered to all public elementary school and secondary school students in the State;

(ii) be aligned with the challenging State academic standards, and provide coherent and timely information967 about student attainment of such standards and whether the student is performing at the student’s grade level;

(iii) be used for purposes for which such assessments are valid and reliable, consistent with relevant, nationally recognized professional and technical testing standards, objectively measure academic achievement, knowledge, and skills, and be tests that do not evaluate or assess personal or family beliefs and attitudes, or publicly disclose personally identifiable information;

(iv) be of adequate technical quality for each purpose required under this Act and consistent with the requirements of this section, the evidence of which shall be made public, including on the website of the State educational agency;

(v)(I) in the case of mathematics and reading or language arts, be administered in each of grades 3 through 8; and at least once in grades 9 through 12; (II) in the case of science, be administered not less than one time during grades 3 through 5; grades 6 through 9; and (cc) grades 10 through 12;…

(vi) involve multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills and understanding, which may include measures of student academic growth and may be partially delivered in the form of portfolios, projects, or extended performance tasks;

(vii) provide for—(I) the participation in such assessments of all students; (II) the appropriate accommodations…for children with disabilities…, including students with the most significant cognitive disabilities,…necessary to measure the academic achievement of such children relative to the challenging State academic standards or alternate academic achievement standards described in paragraph (1)(E); and (III) the inclusion of English learners, who shall be assessed in a valid and reliable manner and provided appropriate accommodations on assessments administered to such students under this paragraph, including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what such students know and can do in academic content areas, until such students have achieved English language proficiency, as determined under subparagraph (G);

(viii) at the State’s discretion—(I) be administered through a single summative assessment; or (II) be administered through multiple statewide interim assessments during the course of the academic year that result in a single968 summative score that provides valid, reliable, and transparent information on student achievement or growth;

…

(xi) enable results to be disaggregated within each State, local educational agency, and school by [each of the major demographic groups]

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(F) LANGUAGE ASSESSMENTS.—

(i) IN GENERAL.—Each State plan shall identify the languages other than English that are present to a significant extent in the participating student population of the State and indicate the languages for which annual student academic assessments are not available and are needed.

(ii) SECRETARIAL ASSISTANCE.—The State shall make every effort to develop such assessments and may request assistance from the Secretary if linguistically accessible academic assessment measures are needed. Upon request, the Secretary shall assist with the identification of appropriate academic assessment measures in the needed languages, but shall not mandate a specific academic assessment or mode of instruction.

(G) ASSESSMENTS OF ENGLISH LANGUAGE PROFICIENCY.—

(i) IN GENERAL.—Each State plan shall demonstrate that local educational agencies in the State will provide for an annual assessment of English proficiency of all English learners in the schools served by the State educational agency.

(ii) ALIGNMENT.—The assessments described in clause (i) shall be aligned with the State’s English language proficiency standards described in paragraph (1)(F).

…

(K) RULE OF CONSTRUCTION ON PARENT RIGHTS.—Nothing in this paragraph shall be construed as preempting a State or local law regarding the decision of a parent to not have the parent’s child participate in the academic assessments under this paragraph.

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(3) EXCEPTION FOR RECENTLY ARRIVED ENGLISH LEARNERS.—

(A) ASSESSMENTS.—With respect to recently arrived English learners who have been enrolled in a school in one of the 50 States in the United States or the District of Columbia for less than 12 months, a State may [under certain conditions choose to exclude such students from reading or language arts assessments].

(B) ENGLISH LEARNER SUBGROUP.—With respect to a student previously identified as an English learner and for not969 more than 4 years after the student ceases to be identified as an English learner, a State may include the results of the student’s assessments under paragraph (2)(B)(v)(I) within the English learner subgroup of the subgroups of students (as defined in subsection (c)(2)(D)) for the purposes of the State-determined accountability system.

(1) IN GENERAL.—Each State plan shall describe a statewide accountability system that complies with the requirements of this subsection and subsection (d).

(2) SUBGROUP OF STUDENTS.—In this subsection and subsection (d), the term ‘subgroup of students’ means—(A) economically disadvantaged students; (B) students from major racial and ethnic groups; (C) children with disabilities; and (D) English learners.

…

(4) DESCRIPTION OF SYSTEM.—The statewide accountability system described in paragraph (1) shall be based on the challenging State academic standards for reading or language arts and mathematics described in subsection (b)(1) to improve student academic achievement and school success. In designing such system to meet the requirements of this part, the State shall carry out the following:

(A) ESTABLISHMENT OF LONG-TERM GOALS.—Establish ambitious State-designed long-term goals, which shall include measurements of interim progress toward meeting such goals—

(i) for all students and separately for each subgroup of students in the State—

(I) for, at a minimum, improved—(aa) academic achievement, as measured by proficiency on the annual assessments required under subsection (b)(2)(B)(v)(I); and (bb) high school graduation rates…

(II) for which the term set by the State for such goals is the same multi-year length of time for all students and for each subgroup of students in the State; and

(III) that, for subgroups of students who are behind on the measures described in items (aa) and (bb) of subclause (I), take into account the improvement necessary on such measures to make significant progress in closing statewide proficiency and graduation rate gaps; and

(ii) for English learners, for increases in the percentage of such students making progress in achieving English language proficiency, as defined by the State970 and measured by the assessments described in subsection (b)(2)(G), within a State-determined timeline.

(B) INDICATORS.—Except for the indicator described in clause (iv), annually measure, for all students and separately for each subgroup of students, the following indicators:

(i) For all public schools in the State, based on the long-term goals established under subparagraph (A), academic achievement—as measured by proficiency on the annual assessments…; and at the State’s discretion, for each public high school in the State, student growth, as measured by such annual assessments.

(ii) For public elementary schools and secondary schools that are not high schools in the State—a measure of student growth, if determined appropriate by the State; or another valid and reliable statewide academic indicator that allows for meaningful differentiation in school performance.

(iii) For public high schools in the State, and based on State-designed long term goals established under subparagraph (A)—the four-year adjusted cohort graduation rate; and at the State’s discretion, the extended-year adjusted cohort graduation rate.

(iv) For public schools in the State, progress in achieving English language proficiency…

(v) For all public schools in the State, not less than one indicator of school quality or student success that—(aa) allows for meaningful differentiation in school performance; (bb) is valid, reliable, comparable, and statewide (with the same indicator or indicators used for each grade span, as such term is determined by the State); and (cc) may include one or more of the [following] measures[:] student engagement; educator engagement; student access to and completion of advanced coursework; postsecondary readiness; school climate and safety; and any other indicator the State chooses that meets the requirements of this clause.

(C) ANNUAL MEANINGFUL DIFFERENTIATION.—Establish a system of meaningfully differentiating, on an annual basis, all public schools in the State, which shall—

(i) be based on all indicators in the State’s accountability system under subparagraph (B), for all students and for each of subgroup of students, consistent with the requirements of such subparagraph;

(ii) with respect to the indicators described in clauses (i) through (iv) of subparagraph (B) afford substantial weight to each such indicator; and in the aggregate, much greater weight than is afforded to the indicator or indicators utilized971 by the State and described in subparagraph (B)(v), in the aggregate; and

(iii) include differentiation of any such school in which any subgroup of students is consistently underperforming, as determined by the State, based on all indicators under subparagraph (B) and the system established under this subparagraph.

(D) IDENTIFICATION OF SCHOOLS.—Based on the system of meaningful differentiation described in subparagraph (C), establish a State-determined methodology to identify…at least once every three school years thereafter, one statewide category of schools for comprehensive support and improvement, as described in subsection (d)(1), which shall include—(I) not less than the lowest-performing 5 percent of all schools receiving funds under this part in the State; (II) all public high schools in the State failing to graduate one third or more of their students; and (III) public schools in the State described under subsection (d)(3)(A)(i)(II)….

(E) ANNUAL MEASUREMENT OF ACHIEVEMENT.—Annually measure the achievement of not less than 95 percent of all students, and 95 percent of all students in each subgroup of students, who are enrolled in public schools on the assessments described under subsection (b)(2)(v)(I). For the purpose of measuring, calculating, and reporting on the indicator described in subparagraph (B)(i), include in the denominator the greater of—(I) 95 percent of all such students, or 95 percent of all such students in the subgroup, as the case may be; or (II) the number of students participating in the assessments.

…

(5) ACCOUNTABILITY FOR CHARTER SCHOOLS.—The accountability provisions under this Act shall be overseen for charter schools in accordance with State charter school law.

(d) SCHOOL SUPPORT AND IMPROVEMENT ACTIVITIES.—

(1) COMPREHENSIVE SUPPORT AND IMPROVEMENT.—

(A) IN GENERAL.—Each State educational agency receiving funds under this part shall notify each local educational agency in the State of any school served by the local educational agency that is identified for comprehensive support and improvement under subsection (c)(4)(D)(i).

(B) LOCAL EDUCATIONAL AGENCY ACTION.—Upon receiving such information from the State, the local educational agency shall, for each school identified by the State and in partnership with stakeholders (including principals and other school leaders, teachers, and parents), locally develop and implement a comprehensive support and improvement plan for the school to972 improve student outcomes, that—(i) is informed by all indicators described in subsection (c)(4)(B), including student performance against State-determined long-term goals; (ii) includes evidence-based interventions; (iii) is based on a school-level needs assessment; (iv) identifies resource inequities, which may include a review of local educational agency and school-level budgeting, to be addressed through implementation of such comprehensive support and improvement plan; (v) is approved by the school, local educational agency, and State educational agency; and (vi) upon approval and implementation, is monitored and periodically reviewed by the State educational agency.

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(D) PUBLIC SCHOOL CHOICE.—

(i) IN GENERAL.—A local educational agency may provide all students enrolled in a school identified by the State for comprehensive support and improvement under subsection (c)(4)(D)(i) with the option to transfer to another public school served by the local educational agency, unless such an option is prohibited by State law.

(ii) PRIORITY.—In providing students the option to transfer to another public school, the local educational agency shall give priority to the lowest-achieving children from low-income families, as determined by the local educational agency for the purposes of allocating funds to schools under section 1113(a)(3).

…

(v) FUNDING FOR TRANSPORTATION.—A local educational agency may spend an amount equal to not more than 5 percent of its allocation under subpart 2 of this part to pay for the provision of transportation for students who transfer under this paragraph to the public schools to which the students transfer.

(2) TARGETED SUPPORT AND IMPROVEMENT.—

(A) IN GENERAL.—Each State educational agency receiving funds under this part shall, using the meaningful differentiation of schools described in subsection (c)(4)(C)—[notify districts and schools of their consistent underperformance].

(B) TARGETED SUPPORT AND IMPROVEMENT PLAN.—Each school receiving a notification described in this paragraph, in partnership with stakeholders (including principals and other school leaders, teachers and parents), shall develop and implement a school-level targeted support and improvement plan to improve student outcomes based on the indicators in the statewide accountability system established under subsection (c)(4), for each subgroup of students that was the subject of973 notification that—(i) is informed by all indicators described in subsection (c)(4)(B), including student performance against long-term goals; (ii) includes evidence-based interventions; (iii) is approved by the local educational agency prior to implementation of such plan; (iv) is monitored, upon submission and implementation, by the local educational agency; and (v) results in additional action following unsuccessful implementation of such plan after a number of years determined by the local educational agency.

(C) ADDITIONAL TARGETED SUPPORT.—[Schools falling in the lowest performing 5 percent in the state’s accountability system] shall also identify resource inequities (which may include a review of local educational agency and school level budgeting), to be addressed through implementation of such plan.

…

(3) CONTINUED SUPPORT FOR SCHOOL AND LOCAL EDUCATIONAL AGENCY IMPROVEMENT.—To ensure continued progress to improve student academic achievement and school success in the State, the State educational agency—

(A) shall—

(i) establish statewide exit criteria for (I) [schools performing in the lowest 5 percent], which, if not satisfied within a State-determined number of years (not to exceed four years), shall result in more rigorous State-determined action, such as the implementation of interventions (which may include addressing school-level operations); and (II) schools described in paragraph (2)(C), which, if not satisfied within a State-determined number of years, shall, in the case of such schools receiving assistance under this part, result in identification of the school by the State for comprehensive support and improvement under subsection (c)(4)(D)(i)(III);

(ii) periodically review resource allocation to support school improvement in each local educational agency in the State serving [a significant number of schools receiving targeted or comprehensive support and improvement under the foregoing sections]; and

(iii) provide technical assistance to each local educational agency in the State serving a significant number of schools implementing [targeted or comprehensive support and improvement plans]; and

(B) may (i) take action to initiate additional improvement in any local educational agency…

(e) PROHIBITION.—

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(1) IN GENERAL.—Nothing in this Act shall be construed to authorize or permit the Secretary—

(A) when promulgating any rule or regulation, to promulgate any rule or regulation on the development or implementation of the statewide accountability system established under this section that would—(i) add new requirements that are inconsistent with or outside the scope of this part; (ii) add new criteria that are inconsistent with or outside the scope of this part; or (iii) be in excess of statutory authority granted to the Secretary;

(B) as a condition of approval of the State plan, or revisions or amendments to, the State plan, or approval of a waiver request submitted under section 8401, to—(i) require a State to add any requirements that are inconsistent with or outside the scope of this part; (ii) require a State to add or delete one or more specific elements of the challenging State academic standards; or (iii) prescribe—(I) numeric long-term goals or measurements of interim progress that States establish for all students [or] any subgroups of students; (II) specific academic assessments or assessment items…; (III) indicators that States use within the State accountability system under this section…; (IV) the weight of any measure or indicator used to identify or meaningfully differentiate schools, under this part; (V) the specific methodology used by States to meaningfully differentiate or identify schools under this part; (VI) any specific school support and improvement strategies or activities that State or local educational agencies establish and implement to intervene in, support, and improve schools and improve student outcomes under this part; (VII) exit criteria established by States under subsection (d)(3)(A)(i);…; (IX) any aspect or parameter of a teacher, principal, or other school leader evaluation system within a State or local educational agency; (X) indicators or specific measures of teacher, principal, or other school leader effectiveness or quality;…

(C) to issue new non-regulatory guidance that—(i) in seeking to provide explanation of requirements under this section for State or local educational agencies…provides a strictly limited or exhaustive list to illustrate successful implementation of provisions under this section; or (ii) purports to be legally binding; or

(D) to require data collection under this part beyond data derived from existing Federal, State, and local reporting requirements.

(2) DEFINING TERMS.—In carrying out this part, the Secretary shall not, through regulation or as a condition of approval of the State plan or revisions or amendments to the State plan, promulgate a definition of any term used in this part, or otherwise prescribe any975 specification for any such term, that is inconsistent with or outside the scope of this part or is in violation of paragraph (1).

(f) EXISTING STATE LAW.—Nothing in this section shall be construed to alter any State law or regulation granting parents authority over schools that repeatedly failed to make adequate yearly progress under this part, as in effect on the day before the date of the enactment of the Every Student Succeeds Act.

(g) OTHER PLAN PROVISIONS.—

(1) DESCRIPTIONS.—Each State plan shall describe—

(A) how the State will provide assistance to local educational agencies and individual elementary schools choosing to use funds under this part to support early childhood education programs;

(B) how low-income and minority children enrolled in schools assisted under this part are not served at disproportionate rates by ineffective, out-of-field, or inexperienced teachers, and the measures the State educational agency will use to evaluate and publicly report the progress of the State educational agency with respect to such description (except that nothing in this subparagraph shall be construed as requiring a State to develop or implement a teacher, principal, or other school leader evaluation system);

(C) how the State educational agency will support local educational agencies receiving assistance under this part to improve school conditions for student learning, including through reducing—(i) incidences of bullying and harassment; (ii) the overuse of discipline practices that remove students from the classroom; and (iii) the use of aversive behavioral interventions that compromise student health and safety;

(D) how the State will support local educational agencies receiving assistance under this part in meeting the needs of students at all levels of schooling (particularly students in the middle grades and high school), including how the State will work with such local educational agencies to provide effective transitions of students to middle grades and high school to decrease the risk of students dropping out;

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NOTES AND QUESTIONS

1. The introductory section of the Act—Section 1001—states its purpose as being “to provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.” How effective will this Act be in achieving that purpose? Keep this question in mind as you consider the next questions.

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2. How do the foregoing provisions of the Act balance power between the state and federal governments? Is it an appropriate balance? What view of educational authority and decision making does it reflect?

3. What type of academic standards does the Act mandate that states adopt? How, if at all, does the mandate differ from the academic standard mandate of No Child Left Behind? Is this an improvement? Is it sufficient to ensure students are being taught and learning the material they need to succeed?

4. How have the academic assessment requirements changed since NCLB? How have the assessments remained the same? Are the changes an improvement?

5. What metrics or factors are states to examine in measuring student performance? What are the goals for student success? How are states to hold local schools and districts accountable under the Act? What metrics or factors are the states to examine in determining whether schools and districts are successful or effective? Is this approach to accountability an improvement over NCLB? Does the Act afford states too much discretion or strike the correct balance?

6. What are the sanctions for schools and districts that do not meet student performance goals? Are all schools subject to sanctions or just some? How does this differ from NCLB?

7. How has student choice changed since NCLB? Does the new Act actually do anything to enhance student choice? In the multi-year lead-up to the reauthorization of NCLB, advocates on both sides of the issue sought significant change in regard to student choice. Civil rights advocates wanted to retain the mandate that students in struggling schools be offered the chance to transfer to other schools, but they wanted students to have the right to transfer across school district lines. Given that the most significant funding inequalities and segregation occur between districts, not within them, a right of interdistrict transfer could have achieved many of the goals civil rights advocates have long sought. See Meredith P. Richards et al., Century Foundation, Can NCLB Choice Work? Modeling the Effects of Interdistrict Choice on Student Access to Higher-Performing Schools 3 (2011) (less than 1 percent of eligible students transfer); Goodwin Liu & William L. Taylor, School Choice to Achieve Desegregation, 74 Fordham L. Rev. 791 (2005). On the other hand, those who favor school choice as a principle of general individual autonomy wanted to turn Title I funding into what would amount to a voucher system whereby students could attend any public or private school they wanted. Alyson Klein, Cantor, Kline Push No Child Left Behind Rewrite, Public School Choice, Education Week, July 16, 2013. This might theoretically coincide with some civil rights goals, but it might also undermine public education itself and intensify segregation. See Derek W. Black, Charter Schools, Vouchers, and the Public Good, 48 Wake Forest L. Rev. 445 (2013)

8. What powers does the Secretary of Education have under the Act? What powers does the Secretary lack? What does the Act explicitly prohibit the Secretary from doing? Why did Congress impose these specific limits?

9. In the immediate years preceding the Every Student Succeeds Act, teacher and parental dissatisfaction with standardized testing reached a zenith. This dissatisfaction also coincided with the controversy surrounding states’ adoption of the Common Core and the standardized tests being developed to977 assess students’ mastery of the Common Core. The result was a coordinated strategy by parents to keep their children out of school on testing days. In New York, over 150,000 students boycotted the spring tests in 2015. Swapna Venugopal Ramaswamy, 155,000 New York Kids Boycott Standardized Tests, USA Today, Apr. 16, 2015; see also Emily Atteberry, Lee County Makes History, Opts Out of State-mandated Tests, News-Press.com, Sept. 5, 2014. These boycotts created serious problems for districts and states, as No Child Left Behind required that 95 percent of all students take the tests. In other words, school authorities might be in violation of the Act because of what parents were doing. The intent behind the 95 percent requirement was to ensure schools did not exempt students with disabilities and other disadvantaged or academically struggling students from taking the standardized tests so as to boost schools’ passing rates. How does the new Act deal with these problems? Are its solutions good ones? Are there any new problems that the opt-out provision might create?

Sec. 1112 Local Educational Agency Plans

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(e) PARENTS RIGHT-TO-KNOW.—

(1) INFORMATION FOR PARENTS.—

(i) Whether the student’s teacher—(I) has met State qualification and licensing criteria for the grade levels and subject areas in which the teacher provides instruction; (II) is teaching under emergency or other provisional status through which State qualification or licensing criteria have been waived; and (III) is teaching in the field of discipline of the certification of the teacher.

(ii) Whether the child is provided services by paraprofessionals and, if so, their qualifications.

(B) ADDITIONAL INFORMATION.—In addition to the information that parents may request under subparagraph (A), a school that receives funds under this part shall provide to each individual parent of a child who is a student in such school, with respect to such student—(i) information on the level of achievement and academic growth of the student, if applicable and available, on each of the State academic assessments required under this part; and (ii) timely notice that the student has been assigned, or has been taught for 4 or more consecutive weeks by, a teacher who does not meet applicable State certification978 or licensure requirements at the grade level and subject area in which the teacher has been assigned.

(2) TESTING TRANSPARENCY.—

(A) IN GENERAL.—At the beginning of each school year, a local educational agency that receives funds under this part shall notify the parents of each student attending any school receiving funds under this part that the parents may request, and the local educational agency will provide the parents on request (and in a timely manner), information regarding any State or local educational agency policy regarding student participation in any assessments mandated by section 1111(b)(2) and by the State or local educational agency, which shall include a policy, procedure, or parental right to opt the child out of such assessment, where applicable.

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(3) LANGUAGE INSTRUCTION.—

(A) NOTICE.—Each local educational agency using funds under this part or title III to provide a language instruction educational program as determined under title III shall, not later than 30 days after the beginning of the school year, inform parents of an English learner identified for participation or participating in such a program, of—

(i) the reasons for the identification of their child as an English learner and in need of placement in a language instruction educational program;

(ii) the child’s level of English proficiency, how such level was assessed, and the status of the child’s academic achievement;

(iii) the methods of instruction used in the program in which their child is, or will be, participating and the methods of instruction used in other available programs, including how such programs differ in content, instructional goals, and the use of English and a native language in instruction;

(iv) how the program in which their child is, or will be, participating will meet the educational strengths and needs of their child;

(v) how such program will specifically help their child learn English and meet age-appropriate academic achievement standards for grade promotion and graduation;

(vi) the specific exit requirements for the program, including the expected rate of transition from such program into classrooms that are not tailored for English learners, and the expected rate of graduation from high school (including four-year adjusted cohort graduation rates and extended-year adjusted cohort graduation rates for such program) if funds under this part are used for children in high schools;

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(vii) in the case of a child with a disability, how such program meets the objectives of the individualized education program of the child, as described in section 614(d) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)); and

(viii) information pertaining to parental rights that includes written guidance detailing the right that parents have to have their child immediately removed from such program upon their request [and the options parents have regarding other programs.]

(i) IN GENERAL.—Each local educational agency receiving funds under this part shall implement an effective means of outreach to parents of English learners to inform the parents regarding how the parents can be involved in the education of their children; and be active participants in assisting their children…

(ii) REGULAR MEETINGS.—Implementing an effective means of outreach to parents under clause (i) shall include holding, and sending notice of opportunities for, regular meetings for the purpose of formulating and responding to recommendations from parents of students assisted under this part or title III.

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QUESTIONS

1. What ends is the Act attempting to achieve through the foregoing provisions? How important are these goals? Are these requirements effective means to achieve them?

2. How do these provisions intersect with the other statutory and constitutional provisions explored in prior chapters?

Complex sets of rules have long accompanied the expenditure of federal funds in education. One of the goals of those rules is to ensure that federal funds for low-income students are not being spent on other students or otherwise misused. The reporting and funding tracking requirements, however, can be administratively burdensome. Some schools might better spend their time focusing on the delivery of education. For instance, if nearly all of a school’s students are low-income, it may not be worth the effort to track and disaggregate expenditures. Toward that end, the Elementary and Secondary Education Act has traditionally exempted certain schools from some funding rules. Those schools are given what is called “schoolwide program” status. Department of Education guidance offers this explanation of schoolwide programs:

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A targeted assistance program employs staff paid with Title I funds to serve only those students who have been identified as being most at-risk of not meeting the State’s challenging standards. Multiple measures of student academic achievement are used to determine which students are eligible to participate in the program. Services to eligible students may be provided in a “pullout” setting on a limited basis, or may be provided in the regular classroom.

Schoolwide program schools use Title I funds to meet the needs of all students in the school, as determined through a comprehensive needs assessment. Individual students are not identified as eligible to participate. No distinctions are made between staff paid with Title I funds and staff who are not. All school staff are expected to direct their efforts toward upgrading the entire educational program and improving the achievement of all students, particularly those who are low achieving.

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The original schoolwide concept (which was first included in the law in 1978) drew on “effective schools” research that pointed to the value of implementing comprehensive improvement strategies throughout an entire school as a way of improving outcomes for individual students. Research findings since that time reinforce the fact that all children, including the lowest-performing children, in high-poverty communities can master challenging academic content and complex problem solving skills when resources, practices, and procedures are coordinated across an entire school.

Department of Education, Designing Schoolwide Programs: Non-regulatory Guidance 6–7 (Mar. 2006).

The new Act amended the requirements relating to schoolwide programs. The most pertinent parts of the new section are reprinted below.

Sec. 1008 Schoolwide Programs

(a) IN GENERAL.—

(1) USE OF FUNDS FOR SCHOOLWIDE PROGRAMS.—

(A) ELIGIBILITY.—A local educational agency may consolidate and use funds under this part, together with other Federal, State, and local funds, in order to upgrade the entire educational program of a school that serves an eligible school attendance area in which not less than 40 percent of the children are from low-income families, or not less than 40 percent of the children enrolled in the school are from such families.

(B) EXCEPTION.—A school that serves an eligible school attendance area in which less than 40 percent of the children are from low-income families, or a school for which less than 40 percent of the children enrolled in the school are from such families, may operate a schoolwide program under this section if the school receives a waiver from the State educational agency to do so, after taking into account how a schoolwide program will best serve the needs of the students in the school served under this part in improving academic achievement and other factors.

(2) IDENTIFICATION OF STUDENTS NOT REQUIRED.—

(A) IN GENERAL.—No school participating in a schoolwide program shall be required to identify particular children under981 this part as eligible to participate in a schoolwide program; or individual services as supplementary.

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QUESTIONS

1. The new version of the Act retains the 40 percent poverty threshold to qualify as a schoolwide program, but also makes it easier for schools under that threshold to apply for “schoolwide program” status. Is that a good idea? Is 40 percent poverty the correct threshold?

2. In 2015, the Department indicated that 70 percent of the nation’s Title I schools were already operating as schoolwide programs. Ann Wahlen, U.S. Department of Educ., Letter to Chief State School Officer, Supporting School Reform by Leveraging Federal Funds in a Schoolwide Program 1 (July 30, 2015).

The ESEA has long included a “supplement, not supplant” restriction, along with the requirement of “maintenance of effort.” The first standard requires that Title I money be used to supplement existing state funding for education, not as a means to reduce the amount of money states themselves devote to education. Maintenance of effort requires that states maintain their level of education funding over the course of years. The simple intent of these standards is to ensure that federal money is truly extra money for low-income students, but both concepts have come under increasing critique in recent years due to their purported ineffectiveness in achieving the goal of extra money for low-income students’ educational opportunities.

The problem with “supplement, not supplant” is the gap between theory and reality. As a theory, it makes perfect sense, but in practice, it is nearly impossible to enforce given the complexity of school funding and the year-to-year changes that necessarily occur. For that reason, the U.S. Government Accounting Office, in an audit of the standard, recommended eliminating the supplement-not-supplant standard altogether. U.S. Gov’t Accountability Off., Disadvantaged Students: Fiscal Oversight of Title I Could Be Improved 24–26 (2003).

The problem with maintenance of effort is that the numerical requirements have been too permissive in recent decades. NCLB, “permit[ed] school districts to draw down their current funding to ninety percent of the previous year. Given that federal funds are on average only eight percent of schools’ education budgets, school districts could theoretically reduce their local contribution by eight percent, replace that reduction with federal funds, and still meet the requirement of maintaining their local funding at ninety percent of the previous year. Although such action would clearly subvert the entire purpose of Title I, it would not violate the maintenance-of-effort standard.” Derek W. Black, The Congressional Failure to Enforce Equal Protection Through the Elementary and Secondary Education Act, 90 B.U. L. Rev. 313, 319 (2010).

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Presumably in response to these and other critiques, the new Act alters both the supplement, not supplant and maintenance-of-effort standards. These concepts appear in several sections of the Act. The sections reprinted below are representative of the other sections and most pertinent.

Sec. 1012 Supplement, not Supplant

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(b) FEDERAL FUNDS TO SUPPLEMENT, NOT SUPPLANT, NON- FEDERAL FUNDS.—

(1) IN GENERAL.—A State educational agency or local educational agency shall use Federal funds received under this part only to supplement the funds that would, in the absence of such Federal funds, be made available from State and local sources for the education of students participating in programs assisted under this part, and not to supplant such funds.

(2) COMPLIANCE.—To demonstrate compliance with paragraph (1), a local educational agency shall demonstrate that the methodology used to allocate State and local funds to each school receiving assistance under this part ensures that such school receives all of the State and local funds it would otherwise receive if it were not receiving assistance under this part.

(3) SPECIAL RULE.—No local educational agency shall be required to—

(A) identify that an individual cost or service supported under this part is supplemental; or

(B) provide services under this part through a particular instructional method or in a particular instructional setting in order to demonstrate such agency’s compliance with paragraph (1).

(4) PROHIBITION.—Nothing in this section shall be construed to authorize or permit the Secretary to prescribe the specific methodology a local educational agency uses to allocate State and local funds to each school receiving assistance under this part.

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Sec. 1017 Education Finance Incentive Grant Program

MAINTENANCE OF EFFORT.—

(1) IN GENERAL.—A State is entitled to receive its full allotment of funds under this section for any fiscal year if the Secretary finds that the State’s fiscal effort per student or the aggregate expenditures of the State with respect to the provision of free public education by the State for the preceding fiscal year was not less than 90 percent of the fiscal983 effort or aggregate expenditures for the second preceding fiscal year, subject to the requirements of paragraph (2).

(2) REDUCTION IN CASE OF FAILURE TO MEET.—

(A) IN GENERAL.—The Secretary shall reduce the amount of the allotment of funds under this section for any fiscal year in the exact proportion by which a State fails to meet the requirement of paragraph (1) by falling below 90 percent of both the fiscal effort per student and aggregate expenditures (using the measure most favorable to the State), if such State has also failed to meet such requirement (as determined using the measure most favorable to the State) for 1 or more of the 5 immediately preceding fiscal years.

(B) SPECIAL RULE.—No such lesser amount shall be used for computing the effort required under paragraph (1) for subsequent years.

(3) WAIVER.—The Secretary may waive the requirements of this subsection if the Secretary determines that a waiver would be equitable due to (A) exceptional or uncontrollable circumstances, such as a natural disaster or a change in the organizational structure of the State; or a precipitous decline in the financial resources of the State.

NOTES AND QUESTIONS

1. The new statutory language changes both of these standards. What exactly does it do? Does it resolve the problem, ignore it, or create new ones?

2. The foregoing sections require the state to maintain its fiscal effort and not supplant funds. Identical provisions apply to school districts. See 20 U.S.C.A. §7901; 20 U.S.C.A. §6321.

3. In Spring 2016, the Secretary of Education proposed and advocated for regulations to strengthen the supplement not supplant standard. The regulations would require districts to demonstrate that they were “spending an amount of state and local funds per pupil in each Title I-A school that is equal to or greater than the average amount spent per pupil in non-Title I-A schools.” Congressional Research Service, Memorandum, Proposed Regulations on the Supplement, Not Supplant Provision That Applies to the Title I-A Program Authorized by the Elementary and Secondary Education Act 5 (May 5, 2016). These regulations prompted an intense disagreement between the Secretary of Education and Congressional leaders over whether these regulations were a proper interpretation of the statute. Senator Lamar Alexander, the principal author of the Every Student Succeeds Act, went so far as to say he would support school officials in suing the Department of Education and refusing to comply with the regulations. Cory Turner, The “Intolerable” Fight Over School Money, National Public Radio, May 18, 2016.

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The following excerpt describes a pilot program to further explore weighted per-pupil funding and its effectiveness. The primary effect would appear to alleviate schools and districts from the normal strictures and rules regarding how Title I funds should be spent. Rather than follow the traditional rules, districts could consolidate the funds and allocate them through a weighted formula. To be clear, however, this program would not exempt school districts from complying with state rules and formulas pertaining to the expenditure of state education funds. This program, however, might allow states and districts to better coordinate federal funds with any progressive or weighted student funding policies that exist in state law. Regardless of the impact of this section of the Act, the fact that it was included is symbolically important in that the state explicitly recognizes the potential merits of student-weighted funding.

Part E—Flexibility for Equitable per-Pupil Funding

Sec. 1501 Flexibility for Equitable per-pupil funding

(a) PURPOSE.—The purpose of the program under this section is to provide local educational agencies with flexibility to consolidate eligible Federal funds and State and local education funding in order to create a single school funding system based on weighted per-pupil allocations for low-income and otherwise disadvantaged students.

(b) AUTHORITY.—

(1) IN GENERAL.—The Secretary is authorized to enter into local flexibility demonstration agreements—

(A) for not more than 3 years with local educational agencies that are selected under subsection (c) and submit proposed agreements that meet the requirements of subsection (d); and

(B) under which such agencies may consolidate and use funds in accordance with subsection (d) in order to develop and implement a school funding system based on weighted per-pupil allocations for low-income and otherwise disadvantaged students.

(2) FLEXIBILITY.—Except as described in subsection (d)(1)(I), the Secretary is authorized to waive, for local educational agencies entering into agreements under this section, any provision of this Act that would otherwise prevent such agency from using eligible Federal funds as part of such agreement.

(1) IN GENERAL.—The Secretary may enter into local flexibility demonstration agreements with not more than 50 local educational agencies with an approved application under subsection (d).

(2) SELECTION.—Each local educational agency shall be selected based on such agency—

(A) submitting a proposed local flexibility demonstration agreement under subsection (d);

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(B) demonstrating that the agreement meets the requirements of such subsection; and

(3) EXPANSION.—Beginning with the 2019–2020 academic year, the Secretary may extend funding flexibility authorized under this section to any local educational agency that submits and has approved an application under subsection (d), as long as a significant majority of the demonstration agreements with local educational agencies described in paragraph (1) meet the requirements of subsection (d)(2) and subsection (e)(1) as of the end of the 2018–2019 academic year.

(d) REQUIRED TERMS OF LOCAL FLEXIBILITY DEMONSTRATION AGREEMENT.—

(1) APPLICATION.—Each local educational agency that desires to participate in the program under this section shall submit, at such time and in such form as the Secretary may prescribe, an application to enter into a local flexibility demonstration agreement with the Secretary in order to develop and implement a school funding system based on weighted per-pupil allocations that meets the requirements of this section.…

(2) REQUIREMENTS OF THE SYSTEM.—

(A) IN GENERAL.—A local educational agency’s school funding system based on weighted per-pupil allocations shall—

(i) except as allowed under clause (iv), allocate a significant portion of funds, including State and local education funds and eligible Federal funds, to the school level based on the number of students in a school and a formula developed by the agency under this section that determines per-pupil weighted amounts;

(ii) use weights or allocation amounts that allocate substantially more funding to English learners, students from low-income families, and students with any other characteristics associated with educational disadvantage chosen by the local educational agency, than to other students;

(iii) ensure that each high-poverty school receives, in the first year of the demonstration agreement—

(I) more per-pupil funding, including from Federal, State, and local sources, for low-income students than such funding received for low-income students in the year prior to entering into a demonstration agreement under this section; and

(II) at least as much per-pupil funding, including from Federal, State, and local sources, for English learners as such funding received for English learners in986 the year prior to entering into a demonstration agreement under this section;

(iv) be used to allocate to schools a significant percentage, which shall be a percentage agreed upon during the application process, of all the local educational agency’s State and local education funds and eligible Federal funds; and

(v) include all school-level actual personnel expenditures for instructional staff (including staff salary differentials for years of employment) and actual nonpersonnel expenditures in the calculation of the local educational agency’s State and local education funds and eligible Federal funds to be allocated under clause (i).

(B) PERCENTAGE.—In establishing the percentage described in subparagraph (A)(iv) for the system, the local educational agency shall demonstrate that the percentage—

(i) under such subparagraph is sufficient to carry out the purposes of the demonstration agreement under this section and to meet each of the requirements of this subsection; and

(ii) of State and local education funds and eligible Federal funds that are not allocated through the local educational agency’s school funding system based on weighted per-pupil allocations, does not undermine or conflict with the requirements of the demonstration agreement under this section.

(C) EXPENDITURES.—After allocating funds through the system, the local educational agency shall charge schools for the per-pupil expenditures of State and local education funds and eligible Federal funds, including actual personnel expenditures (including staff salary differentials for years of employment) for instructional staff and actual nonpersonnel expenditures.

(e) CONTINUED DEMONSTRATION.—Each local educational agency with an approved application under subsection (d) shall annually—

(1) demonstrate to the Secretary that, as compared to the previous year, no high-poverty school served by the agency received—

(A) less per-pupil funding, including from Federal, State, and local sources, for low-income students; or

(B) less per-pupil funding, including from Federal, State, and local sources, for English learners;

(2) make public and report to the Secretary the per-pupil expenditures (including actual personnel expenditures that include staff salary differentials for years of employment, and actual non-personnel expenditures) of State and local education funds and eligible Federal funds for each school served by the agency, disaggregated by each quartile of students attending the school based on student level of987 poverty and by each major racial or ethnic group in the school, for the preceding fiscal year;

(3) make public the total number of students enrolled in each school served by the agency and the number of students enrolled in each such school disaggregated by each of the subgroups of students, as defined in section 1111(c)(2); and

(4) notwithstanding paragraph (1), (2), or (3), ensure that any information to be reported or made public under this subsection is only reported or made public if such information does not reveal personally identifiable information.

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(j) PROGRAM EVALUATION.—From the amount reserved for evaluation activities under section 8601, the Secretary, acting through the Director of the Institute of Education Sciences, shall, in consultation with the relevant program office at the Department, evaluate—

(1) the implementation of the local flexibility demonstration agreements under this section; and

(2) the impact of such agreements on improving the equitable distribution of State and local funding and increasing student achievement.

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QUESTIONS

1. What exactly does this section of the Act achieve or attempt to achieve?

2. How does it compare to the funding methods described in Chapter 3?

3. What are the weaknesses of this section in achieving its goal? How effective is it likely to be?

The following excerpts come from a different title of the Act. Whereas Title I addresses funding and programs aimed primarily at low-income students, Title II addresses teachers in general, although both titles share a common goal of improving overall education. In the new version of the Act, a large portion of Title II lists and discusses the various things state and local agencies might do to improve teaching quality and the various things on which they might spend Title II funds. Title II, however, does not clearly mandate that state and local districts do any of these particular things. In this respect, Title II reads as a menu of potential options that education agencies might accept or go beyond. For that reason, combined with the length of Title II, most sections of Title II are not reprinted here. The following few sections that are reprinted are intended to offer a brief overview of what Title II seeks to achieve and its major reporting requirements. The most significant change regarding teachers in the new Act was reserved to an omnibus change that deleted the phrase “highly qualified teacher” and replaced it with other phraseology that offered states more control988 to define quality teaching themselves. That omnibus change, of course, resulted in numerous additions and deletions to Title II.

Title II—Preparing, Training, and Recruiting High-Quality Teachers, Principals, or other School leaders

Sec. 2001 Purpose

The purpose of this title is to provide grants to State educational agencies and subgrants to local educational agencies to—

(1) increase student achievement consistent with the challenging State academic standards;

(2) improve the quality and effectiveness of teachers, principals, and other school leaders;

(3) increase the number of teachers, principals, and other school leaders who are effective in improving student academic achievement in schools; and

(4) provide low-income and minority students greater access to effective teachers, principals, and other school leaders.

Part A—Supporting Effective Instruction

Sec. 2101 Formula Grants to States

(d) STATE APPLICATION.—

(1) IN GENERAL.—In order to receive an allotment under [Supporting Effective Instruction section of Title II of the ESEA] for any fiscal year, a State shall submit an application to the Secretary at such time and in such manner as the Secretary may reasonably require.

(2) CONTENTS.—Each application described under paragraph (1) shall include the following:

(A) A description of how the State educational agency will use funds received under this title for State-level activities described in subsection (c).

(B) A description of the State’s system of certification and licensing of teachers, principals, or other school leaders.

(D) A description of how the activities carried out with funds under this part are expected to improve student achievement.

(E) If a State educational agency plans to use funds under this part to improve equitable access to effective teachers, consistent with section 1111(g)(1)(B), a description of how such funds will be used for such purpose.

(F) If applicable, a description of how the State educational agency will work with local educational agencies in the State to989 develop or implement State or local teacher, principal, or other school leader evaluation and support systems that meet the requirements of subsection (c)(4)(B)(ii).

(G) An assurance that the State educational agency will monitor the implementation of activities under this part and provide technical assistance to local educational agencies in carrying out such activities.

(H) An assurance that the State educational agency will work in consultation with the entity responsible for teacher, principal, or other school leader professional standards, certification, and licensing for the State, and encourage collaboration between educator preparation programs, the State, and local educational agencies to promote the readiness of new educators entering the profession.

(I) An assurance that the State educational agency will comply with section 8501 (regarding participation by private school children and teachers).

(J) A description of how the State educational agency will improve the skills of teachers, principals, or other school leaders in order to enable them to identify students with specific learning needs, particularly children with disabilities, English learners, students who are gifted and talented, and students with low literacy levels, and provide instruction based on the needs of such students.

(K) A description of how the State will use data and ongoing consultation as described in paragraph (3) to continually update and improve the activities supported under this part.

(L) A description of how the State educational agency will encourage opportunities for increased autonomy and flexibility for teachers, principals, or other school leaders, such as by establishing innovation schools that have a high degree of autonomy over budget and operations, are transparent and accountable to the public, and lead to improved academic outcomes for students.

(M) A description of actions the State may take to improve preparation programs and strengthen support for teachers, principals, or other school leaders based on the needs of the State, as identified by the State educational agency.

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(e) PROHIBITION.—Nothing in this section shall be construed to authorize the Secretary or any other officer or employee of the Federal Government to mandate, direct, or control any of the following: (1) The development, improvement, or implementation of elements of any teacher, principal, or other school leader evaluation system. (2) Any State or local educational agency’s definition of teacher, principal, or other school leader effectiveness. (3) Any teacher, principal, or other school leader professional standards, certification, or licensing.

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Sec. 2104 Reporting

(a) STATE REPORT.—Each State educational agency receiving funds under this part shall annually submit to the Secretary a report that provides—

(1) a description of how the State is using grant funds received under this part to meet the purpose of this title, and how such chosen activities improved teacher, principal, or other school leader effectiveness, as determined by the State or local educational agency;

(2) if funds are used under this part to improve equitable access to teachers for low-income and minority students, consistent with section 1111(g)(1)(B), a description of how funds have been used to improve such access;

(3) for a State that implements a teacher, principal, or other school leader evaluation and support system, consistent with section 2101(c)(4)(B)(ii), using funds under this part, the evaluation results of teachers, principals, or other school leaders, except that such information shall not provide personally identifiable information on individual teachers, principals, or other school leaders; and

(4) where available, the annual retention rates of effective and ineffective teachers, principals, or other school leaders, using any methods or criteria the State has or develops under section 1111(g)(2)(A), except that nothing in this paragraph shall be construed to require any State educational agency or local educational agency to collect and report any data the State educational agency or local educational agency is not collecting or reporting as of the day before the date of enactment of the Every Student Succeeds Act.

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NOTES AND QUESTIONS

1. Does the Act address the problems schools currently face regarding teaching? What does the Act suggest are the most pressing problems? Do you agree?

2. Section 9214 of the Every Student Succeeds Act changed a key defining phrase in the Act. No Child Left Behind had required that all teachers in core subjects be “highly qualified.” States violated this provision of the Act quicker than any other. See Educ. Comm. of the States, ECS Report to the Nation: State Implementation of the No Child Left Behind Act 69 (2004). The Every Student Succeeds Act struck that phrase from the Act, replacing it with the phrase “teachers who meet the applicable State certification and licensure requirements, including any requirements for certification obtained through alternative routes to certification, or, with regard to special education teachers, the qualifications described in section 612(a)(14)(C) of the Individuals with Disabilities Education Act.” Every Student Succeeds Act, §9214, Pub. L. No. 114-95, 129 Stat. 1802 (Dec. 10, 2015). Is this a positive change? What does it accomplish? Do you foresee any problems?

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3. The new Act also included significant flexibility regarding the types of things on which states and districts could spend their Title II teacher funds. On what aspects of teaching should federal funds be spent?

4. This omnibus change to requiring highly qualified teachers and general hands-off approach to regulating teachers appears to be a response to the Secretary of Education’s aggressive regulation of the teaching profession during the waiver process. As discussed earlier in the chapter, to receive a waiver, states had to agree to adopt teacher evaluation systems that would base personnel decisions heavily on how teachers’ students performed on standardized tests. See U.S. Dep’t of Educ., ESEA Flexibility 6 (June 7, 2012); see also Overview Information; Race to the Top Fund; Notice Inviting Applications for New Awards for Fiscal Year (FY) 2010, 74 Fed. Reg. 59,836 (Nov. 18, 2009) (describing teacher evaluation requirements to qualify for Race to the Top’s competitive grant funds); Derek W. Black, Federalizing Education by Waiver?, 68 Vand. L. Rev. 607, 611 (2015). These systems generated significant resistance from teachers, as well as scholarly critiques focusing on their methodical and empirical flaws. Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 Cal. L. Rev. 75, 94-108 (2016). Did the Act go too far in freeing states to regulate teaching quality as they see fit or are states in a better position to make those judgments?

5. At least one remnant of the data-driven approach to incentivizing and improving teaching quality made its way into the new Act in the form a competitive grant program. The Act provides that the Secretary shall reserve a certain percentage of Title II funds and “shall award grants, on a competitive basis, to eligible entities to enable the eligible entities to develop, implement, improve, or expand performance-based compensation systems or human capital management systems, in schools served by the eligible entity.” Every Student Succeeds Act, §2212, Pub. L. No. 114-95, 129 Stat. 1802 (Dec. 10, 2015). Pay-for-performance teacher compensation systems were promoted as a way to revolutionize teaching, but have yet to yield results. Matthew G. Springer et al., Nat’l Ctr. on Performance Incentives, Teacher Pay for Performance: Experimental Evidence from the Project on Incentives in Teaching 45–46 (2010). What are the pros and cons of pay-for-performance?

The following sections of the Act are general provisions affecting the entirety of the law. They focus primarily on the role of the Department of Education and the Secretary’s powers or lack thereof.

Title VIII—General Provisions

Sec. 8205 Department Staff

The Secretary shall—

(1) not later than 60 days after the date of enactment of the Every Student Succeeds Act, identify the number of Department full-time equivalent employees who worked on or administered each education992 program or project authorized under this Act, as such program or project was in effect on the day before such date of enactment, and publish such information on the Department’s website;

(2) not later than 60 days after such date of enactment, identify the number of full-time equivalent employees who worked on or administered each program or project authorized under this Act, as such program or project was in effect on the day before such date of enactment, that has been eliminated or consolidated since such date of enactment;

(3) not later than 1 year after such date of enactment, reduce the workforce of the Department by the number of full-time equivalent employees the Department identified under paragraph (2); and

(4) not later than 1 year after such date of enactment, report to Congress on—

(A) the number of full-time equivalent employees associated with each program or project authorized under this Act and administered by the Department;

(B) the number of full-time equivalent employees who were determined to be associated with eliminated or consolidated programs or projects described in paragraph (2);

(D) the average salary of the full-time equivalent employees described in subparagraph (B) whose positions were eliminated; and

(E) the average salary of the full-time equivalent employees who work on or administer a program or project authorized by the Department under this Act, disaggregated by employee function within each such program or project.

Sec. 8013 Waivers of Statutory and Regulatory Requirements

(a) IN GENERAL.—

(1) REQUEST FOR WAIVER BY STATE OR INDIAN TRIBE.—A State educational agency or Indian tribe that receives funds under a program authorized under this Act may submit a request to the Secretary to waive any statutory or regulatory requirement of this Act.

(2) LOCAL EDUCATIONAL AGENCY AND SCHOOL REQUESTS SUBMITTED THROUGH THE STATE.—

(A) REQUEST FOR WAIVER BY LOCAL EDUCATIONAL AGENCY.—A local educational agency that receives funds under a program authorized under this Act and desires a waiver of any statutory or regulatory requirement of this Act shall submit a request containing the information described in subsection993 (b)(1) to the appropriate State educational agency. The State educational agency may then submit the request to the Secretary if the State educational agency determines the waiver appropriate.

(B) REQUEST FOR WAIVER BY SCHOOL.—An elementary school or secondary school that desires a waiver of any statutory or regulatory requirement of this Act shall submit a request containing the information described in subsection (b)(1) to the local educational agency serving the school. The local educational agency may then submit the request to the State educational agency in accordance with subparagraph (A) if the local educational agency determines the waiver appropriate.

(b) Request for waiver

(1) In general-A State educational agency, acting on its own behalf or on behalf of a local educational agency in accordance with subsection (a)(2), or Indian tribe that desires a waiver shall submit a waiver request to the Secretary, which shall include a plan that--

(A) identifies the Federal programs affected by the requested waiver;

(B) describes which Federal statutory or regulatory requirements are to be waived;

(D) describes the methods the State educational agency, local educational agency, school, or Indian tribe will use to monitor and regularly evaluate the effectiveness of the implementation of the plan;

(E) includes only information directly related to the waiver request; and

(F) describes how schools will continue to provide assistance to the same populations served by programs for which waivers are requested and, if the waiver relates to provisions of subsections (b) or (h) of section 6311 of this title, describes how the State educational agency, local educational agency, school, or Indian tribe will maintain or improve transparency in reporting to parents and the public on student achievement and school performance, including the achievement of the subgroups of students identified in section 6311(b)(2)(B)(xi) of this title.

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(3) RECEIPT OF WAIVER.—Except as provided in subsection (b)(4) or (c), the Secretary may waive any statutory or regulatory requirement of this Act for which a waiver request is submitted to the Secretary pursuant to this subsection.”;

(4) WAIVER DETERMINATION, DEMONSTRATION, AND REVISION.—

(A) IN GENERAL.—The Secretary shall issue a written determination regarding the initial approval or disapproval of a waiver994 request not more than 120 days after the date on which such request is submitted. Initial disapproval of such request shall be based on the determination of the Secretary that—(i) the waiver request does not meet the requirements of this section; (ii) the waiver is not permitted under subsection (c); (iii) the description required under paragraph (1)(C) in the plan provides insufficient information to demonstrate that the waiving of such requirements will advance student academic achievement consistent with the purposes of this Act; or (iv) the waiver request does not provide for adequate evaluation to ensure review and continuous improvement of the plan.

(B) WAIVER DETERMINATION AND REVISION.—Upon the initial determination of disapproval under subparagraph (A), the Secretary shall—

(i) immediately—(I) notify the State educational agency, local educational agency (through the State educational agency), school (through the local educational agency), or Indian tribe, as applicable, of such determination; and (II) provide detailed reasons for such determination in writing to the applicable entity under subclause (I) to the public, such as posting in a clear and easily accessible format to the Department’s website;

(ii) offer the State educational agency, local educational agency (through the State educational agency), school (through the local educational agency), or Indian tribe an opportunity to revise and resubmit the waiver request by a date that is not more than 60 days after the date of such determination; and

(iii) if the Secretary determines that the resubmission under clause (ii) does not meet the requirements of this section, at the request of the State educational agency, local educational agency, school, or Indian tribe, conduct a hearing not more than 30 days after the date of such resubmission.

(i) the State educational agency, local educational agency, school, or Indian tribe has been notified and offered an opportunity to revise and resubmit the waiver request, as described under clauses (i) and (ii) of subparagraph (B); and

(ii) the State educational agency, local educational agency (through the State educational agency), school (through the local educational agency), or Indian tribe—

(I) does not revise and resubmit the waiver request; or

(II) revises and resubmits the waiver request, and the Secretary determines that such waiver request does995 not meet the requirements of this section after a hearing conducted under subparagraph (B)(iii), if such a hearing is requested.

(D) EXTERNAL CONDITIONS.—The Secretary shall not disapprove a waiver request under this section based on conditions outside the scope of the waiver request.

Part E—Approval and Disapproval of State Plans and Local Applications

Sec. 8451 Approval and Disapproval of State Plans

(a) APPROVAL.—A plan submitted by a State pursuant to section 2101(d), 4103(c), 4203, or 8302 shall be approved by the Secretary unless the Secretary makes a written determination (which shall include the supporting information and rationale supporting such determination), prior to the expiration of the 120-day period beginning on the date on which the Secretary received the plan, that the plan is not in compliance with section 2101(d), 4103(c), or 4203, or part C, respectively.

(b) DISAPPROVAL PROCESS.—

(1) IN GENERAL.—The Secretary shall not finally disapprove a plan submitted under section 2101(d), 4103(c), 4203, or 8302, except after giving the State educational agency notice and an opportunity for a hearing.

(2) NOTIFICATIONS.—If the Secretary finds that the plan is not in compliance, in whole or in part, with section 2101(d), 4103(c), or 4203, or part C, as applicable, the Secretary shall [detail the aspects of the plan that does not meet the Act’s requirements, allow the State to revise and resubmit its plan, assist the State in doing so, and hold a hearing if requested by the State.]

(c) LIMITATION.—A plan submitted under section 2101(d), 4103(c), 4203, or 8302 shall not be approved or disapproved based upon the nature of the activities proposed within such plan if such proposed activities meet the applicable program requirements.

…

Sec. 8526A Prohibition Against Federal Mandates, Direction, or Control

(a) IN GENERAL.—No officer or employee of the Federal Government shall, through grants, contracts, or other cooperative agreements, mandate, direct, or control a State, local educational agency, or school’s specific instructional content, academic standards and assessments, curricula, or program of instruction developed and implemented to meet the requirements of this Act (including any requirement, direction, or mandate996 to adopt the Common Core State Standards developed under the Common Core State Standards Initiative, any other academic standards common to a significant number of States, or any assessment, instructional content, or curriculum aligned to such standards), nor shall anything in this Act be construed to authorize such officer or employee to do so.

(b) FINANCIAL SUPPORT.—No officer or employee of the Federal Government shall condition or incentivize the receipt of any grant, contract, or cooperative agreement, the receipt of any priority or preference under such grant, contract, or cooperative agreement, or the receipt of a waiver under section 8401 upon a State, local educational agency, or school’s adoption or implementation of specific instructional content, academic standards and assessments, curricula, or program of instruction developed and implemented to meet the requirements of this Act (including any condition, priority, or preference to adopt the Common Core State Standards developed under the Common Core State Standards Initiative, any other academic standards common to a significant number of States, or any assessment, instructional content, or curriculum aligned to such standards).

Sec. 8527 Prohibitions on Federal Government and Use of Federal Funds

(a) GENERAL PROHIBITION.—Nothing in this Act shall be construed to authorize an officer or employee of the Federal Government, including through a grant, contract, or cooperative agreement, to mandate, direct, or control a State, local educational agency, or school’s curriculum, program of instruction, or allocation of State or local resources, or mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act.

(b) PROHIBITION ON ENDORSEMENT OF CURRICULUM.—Notwithstanding any other provision of Federal law, no funds provided to the Department under this Act may be used by the Department, whether through a grant, contract, or cooperative agreement, to endorse, approve, develop, require, or sanction any curriculum, including any curriculum aligned to the Common Core State Standards developed under the Common Core State Standards Initiative or any other academic standards common to a significant number of States, designed to be used in an elementary school or secondary school.

(1) authorize an officer or employee of the Federal Government, whether through a grant, contract, or cooperative agreement to mandate, direct, review, or control a State, local educational agency, or school’s instructional content, curriculum, and related activities;

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(2) limit the application of the General Education Provisions Act (20 U.S.C. 1221 et seq.);

(3) require the distribution of scientifically or medically false or inaccurate materials or to prohibit the distribution of scientifically or medically true or accurate materials; or

(4) create any legally enforceable right.

(d) PROHIBITION ON REQUIRING FEDERAL APPROVAL OR CERTIFICATION OF STANDARDS.—

(1) IN GENERAL.—Notwithstanding any other provision of Federal law, no State shall be required to have academic standards approved or certified by the Federal Government, in order to receive assistance under this Act.

(2) RULE OF CONSTRUCTION.—Nothing in this Act shall be construed to prohibit a State, local educational agency, or school from using funds provided under this Act for the development or implementation of any instructional content, academic standards, academic assessments, curriculum, or program of instruction that a State, local educational agency, or school chooses, as permitted under State and local law, as long as the use of such funds is consistent with the terms of the grant, contract, or cooperative agreement providing such funds.

Sec. 8529 Prohibition on Federally Sponsored Testing

(a) GENERAL PROHIBITION.—Notwithstanding any other provision of Federal law and except as provided in subsection (b), no funds provided under this Act to the Secretary or to the recipient of any award may be used to develop, incentivize, pilot test, field test, implement, administer, or distribute any federally sponsored national test in reading, mathematics, or any other subject, unless specifically and explicitly authorized by law, including any assessment or testing materials aligned to the Common Core State Standards developed under the Common Core State Standards Initiative or any other academic standards common to a significant number of States.

Sec. 8544 State Control Over Standards

(a) IN GENERAL.—Nothing in this Act shall be construed to prohibit a State from withdrawing from the Common Core State Standards or from otherwise revising their standards.

(b) PROHIBITION.—No officer or employee of the Federal Government shall, directly or indirectly, through grants, contracts or other cooperative agreements, through waiver granted under section 8401 or through any other authority, take any action against a State that exercises its rights under subsection (a).

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NOTES AND QUESTIONS

1. Since the Department of Education was first created in 1979, there have been calls for its elimination and a continual critique of the federal role in education. That critique of the federal role grew stronger over the course of the No Child Left Behind Act and the various new obligations it placed on states. The tipping point, however, may have been reached between 2010 and 2015, as the Department pursued various new policies through administrative action that were arguably well beyond the scope of No Child Left Behind. See generally Derek W. Black, Federalizing Education by Waiver?, 68 Vand. L. Rev. 607 (2015). Putting aside the substance of the Every Student Succeeds Act, its technical aspects and prohibitions are specifically designed to restrict any federal “overreach” in education.

2. What is §8205 implying about the Department? What does it direct the Secretary to do?

3. What purpose does the waiver process serve? Does the waiver process favor or disfavor waivers? What discretion, if any, does the Secretary have in granting a waiver? What does the statute try to prevent the Secretary from doing through the waiver power? The Secretary can generally waive almost any requirement in the Act, but unchanged from prior versions of the Elementary and Secondary Education Act is the statutory provision that the “Secretary shall not waive under this section any statutory or regulatory requirements relating to—(1) the allocation or distribution of funds…; (2) maintenance of effort; (3) comparability of services; (4) use of Federal funds to supplement, not supplant, non-Federal funds; (5) equitable participation of private school students and teachers; (6) parental participation and involvement; (7) applicable civil rights requirements.…” 20 U.S.C.A. §7861(c) (2016).

4. Under what conditions can the Secretary of Education reject a state’s plan for implementing the Act? Which party holds the most power: the state in seeking approval of its plan or the Secretary in rejecting a plan? Does the Act strike the appropriate balance of power between the two? What happens if a state submits a plan and the Secretary does not act quickly to review it and come to a decision? Section 8452 of the Act applies the same framework for approving and disapproving school district plans.

5. What powers does the Act specifically exclude from the Secretary’s power or prohibit the Department from exercising? Why does the Act identify these specific exclusions and powers? Are they too broad or too narrow?

As discussed in Chapter 3, Title I distributes funds to states and local districts through four separate formulas. Those formulas have been the subject of intense criticism. Scholars and advocacy groups have emphasized how little the formulas do to actually drive funds to those schools and students who need them most, how they sometimes exacerbate inequality and most often are simply irrational in the results they produce. Goodwin Liu, Improving Title I Funding Equity Across States, Districts and Schools, 93 Iowa L. Rev. 973, 1010 (2008); Derek W. Black, How999 the Elementary and Secondary Education Act Undermines Equal Protection and Congress’s Duty to Remedy It, 90 B.U. L. Rev. 313, 347 (2010); Gary D. Funk, Rural School Snub: The Inequity of Title I Funding, Chicago Policy Rev. (Feb. 13, 2012); Ulrich Boser & Catherine Brown, Ctr. for Am. Progress, ESEA Reauthorization: 5 Key Principles to Guide Consideration of Any ESEA Title I Formula Change (July 7, 2015). In fact, no constituency appeared ready to defend the fundamentally flawed system, other than simply to say they did not want to lose funds under a new formula.

Nonetheless, the inherent complexity of the funding formulas combined with the difficulty in devising something better that everyone could agree on (which means hurting no one) produced a very unsatisfactory result: leaving the formulas alone. Senator Burr (NC) had introduced an amendment to the Senate bill that would have addressed some irrationalities in the formulas, merging the four formulas into a single, more simple formula. See Press Release, Richard Burr, Burr Offers Bipartisan Legislation to Increase Education Funding for North Carolina’s Poorest Children (July 7, 2014). His amendment did pass in the Senate, but was struck from the final House-Senate reconciliation bill. The primary problem may have been the fact that the reauthorization bill did not include any significant additional Title I funding. Without additional funding, any change to the formulas would necessarily produce “winners and losers.” The prospect of several losers, and their representatives in the House and Senate, was enough to dissuade changes to the formula that would have undermined the speedy, popular, and bipartisan passage of the overall Act. The Act did, however, take a small step in the direction of reform by funding a study of the formulas and recommendations for reform.

Sec. 9211 Study on the Title I Formula

(a) FINDINGS.—Congress finds the following:

(1) Part A of title I of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6311 et seq.) provides funding to local educational agencies through four separate formulas that have been added to the law over time, and which have “distinct allocation patterns, providing varying shares of allocated funds to different types of local educational agencies or States,” according to a 2015 report from the Congressional Research Service.

(2) Minimal effort has been made by the Federal Government to determine if the four formulas are adequately delivering funds to local educational agencies with the highest districtwide poverty averages.

(3) The formulas for distributing Targeted Grants and Education Finance Incentive grants use two weighting systems, one based on the percentage of children included in the determination of grants to local educational agencies (percentage weighting), and another based on the absolute number of such children (number weighting). Both weighting systems have five quintiles with a roughly equal number of children in each quintile. Whichever of these weighting systems results in the highest total weighted formula child count for a local1000 educational agency is the weighting system used for that agency in the final allocation of Targeted and Education Finance Incentive Grant funds.

(4) The Congressional Research Service has also said the number weighting alternative is generally more favorable to large local educational agencies with much larger geographic boundaries and larger counts of eligible children than smaller local educational agencies with smaller counts, but potentially higher percentages, of eligible children, because large local educational agencies have many more children in the higher weighted quintiles.

(5) In local educational agencies that are classified by the National Center for Education Statistics as “Large City”, 47 percent of all students attend schools with 75 percent or higher poverty.

(b) STUDY.—

(1) IN GENERAL.—Not later than 18 months after the date of enactment of this Act, the Director of the Institute of Education Sciences shall complete a study on the effectiveness of the four part A of title I formulas, described in subsection (a), to deliver funds to the most economically disadvantaged communities.

(2) CONTENTS.—The study described in paragraph (1) shall include—(A) an analysis of the distribution of part A of title I funds under the four formulas; (B) an analysis of how part A of title I funds are distributed among local educational agencies in each of the 12 locale types classified by the National Center on Education Statistics[;] (C) the extent to which the four formulas unduly benefit or unduly disadvantage any of the local educational agencies[, high-poverty eligible school attendance areas, or lower population local educational agencies with relatively high percentages of districtwide poverty]; (F) the impact of number weighting and percentage weighting in the formulas [on areas and districts with high concentrations of poverty]; and (I) recommendations, as appropriate, for amending or consolidating the formulas to better target part A of title I funds to the most economically disadvantaged communities and most economically disadvantaged eligible school attendance areas.

…

NOTES AND QUESTIONS

1. This is not the first study of funding inequality in recent years. In 2010, the U.S. Department of Education convened an Equity and Excellence Commission to study how the federal government could increase educational opportunity by improving school funding equity. The Commission issued a report in 2013 titled For Each and Every Child: A Strategy for Education Equity and Excellence (2013). The report, however, focused on issues much broader than just Title I or even school funding in general.

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2. Given what you have learned thus far, is the problem with reforming the formulas one that requires more study and proposals or more political will? What goals should changes to the formulas seek to achieve? How likely is Congress to make those changes? Under what circumstances might Congress agree to changes to the formulas?

PROBLEM

The major challenge in national education reform is to design standards that are reasonably applicable to every state, school district, and school in the country. The varied circumstances and desires of these localities create significant conflict both within and between states. Moreover, there are numerous national constituencies that are at odds with one another. Important advocacy groups and constituencies exist for, at least, the following: poor, minority, and disadvantaged students; teachers and unions; high-performing suburban districts; state and local administrators and boards; federal agencies; education reformers; and public school alternatives.

The following exercise is designed to provide a deeper understanding of each of these groups, as well as how their competing positions play out in legislation. Pick one of the foregoing national constituencies to represent. Based on the materials covered in this book, as well as outside sources,¹ identify the standards and reforms that your group would want to retain from the current version of the ESEA and those standards and reforms you would want to see added in the future. Be prepared to present a proposed ESEA reauthorization to your class. Also be prepared to critique the proposals of other groups in class. Once you have done both, seek out those groups with whom you may be able to find compromise. Your goal should be to build a larger coalition and develop a joint revised proposal. Once coalitions and new proposals are formed, vote on the proposed bills and identify the proposal that would be the most likely to pass in Congress.

E. STANDARDIZED TESTING

As the foregoing materials reveal, standardized testing is and has been a core component of the ESEA since the enactment of the Improving America’s School Act in 1994. As the chapters on race and poverty show, test results have also provided important evidence in school desegregation and school finance1002 litigation. This section briefly explores the tests themselves rather than the policies that have relied on them.

Standardized testing, in the most general sense, refers to any test that is administered and graded in a uniform manner. As discussed here and in educational policy debates, standardized testing most often refers to multiple-choice exams administered to all students and designed to assess students’ proficiency on state or national curriculum in core subjects. Some of these standardized tests are high stakes, meaning that students’ individual performance will have significant educational consequences. For instance, a student’s score might be a primary or the sole factor in whether the student is assigned to a particular ability group or course of study, promoted to the next grade in school, or permitted to graduate. Analogously, standardized tests can be used to make high-stakes decisions about schools as a whole rather than about individual students. As discussed with the NCLB and ESSA, poor performance could lead to sanctions against states, school districts, and schools. Standardized tests, however, need not be used in this “high-stakes” fashion. Standardized tests can be used only for diagnostic purposes, such as generally determining how a group of students is progressing through the curriculum. Or test results might be just one factor among many in making a decision about individual students or schools.

Two distinct and crucial sets of issues arise with standardized testing. The first set of issues relates to the educational effectiveness and appropriateness of standardized testing. The second set relates to the legal constraints on standardized testing. Standardized testing might be a bad idea from the perspective of educators and, nonetheless, be legal. Likewise, standardized testing might generally be educationally desirable, but run afoul of legal principles if not administered appropriately. While the debate over the educational value of standardized testing is fierce, educators appear to have reached a rough consensus on what form those tests should take if schools are to administer them.

As an initial matter, educators should adopt clear objectives and purposes before they design or administer the test. They should then determine what information they can reasonably test and how those results can or cannot help them accomplish their goals. See generally Am. Educ. Research Ass’n, Am. Psychol. Ass’n & Nat’l Council on Measurement in Educ., Standards for Educational and Psychological Testing (1999). Four principles or concerns should guide the design of the actual test. First, the test must be valid, meaning that the test is accurate in measuring whether the taker possesses the relevant knowledge. Id. at 9. For instance, a test that sought to measure reading comprehension, but included narratives that discussed matters within common knowledge, might not be valid because the scores it produced could reflect students’ common knowledge as much as their reading comprehension. Second, the test results should be reliable, meaning that student results are consistent and not subject to change based on factors such as who administers the exam, who grades it, or when it is taken. Id. at 25-36. In short, tests are reliable if a student would receive a similar score even if the student took the exam several times. Third, tests should be fair, meaning that they do not contain biases or flaws that would under- or overestimate a student’s skill or knowledge based on the student’s race, gender, ethnicity, or disability. Id. at 74-80. Finally, cut scores for passing or failing tests should be reliable. Id. at 9-16. This means that, if a1003 state requires students to answer 75 percent of the questions correctly to be deemed proficient, it should not be the case that students who score below 75 percent nonetheless possess proficient knowledge of the subject matter. In other words, if a cut score is too high or too low, it mischaracterizes the knowledge that students actually have.

These educational good practices can often intersect with legal frameworks. For instance, invalid and unreliable tests may have racial and gender biases that render them problematic under various laws. Some of these problems have already been explored in the chapters on race, gender, language status, and disability. With language status and disability, relatively specific law controls how tests can and cannot be used to diagnose language barriers and disabilities, as well as the core subject matter knowledge.

Relatively few hard and fast legal and constitutional rules exist regarding testing, but two guiding legal principles and rules are worth considering. First, regulations and potentially some statutes may prohibit tests that have disparate impacts based on race, gender, disability, and other protected categories. To be clear, random and small variations in test results between student demographic groups do not typically present any legal concern, but larger disparities can require further analysis to determine whether they are justified by some legitimate educational goal and whether some other test or method might reduce or eliminate the disparities. The likelihood of successfully challenging a test based on racial disparities alone is extremely low given the Court’s holding in Alexander v. Sandoval, 532 U.S. 275 (2001). As Chapter 2 details, however, administrative remedies still exist for racially disparate impacts and, thus, plaintiffs might still pursue a claim with the Department of Education. The analysis for evaluating disparate impacts in testing is generally the same as that described in the U.S. Department of Education’s Dear Colleague Letter on Resource Comparability, which was reprinted in Chapter 2. See also U.S. Department of Education Office for Civil Rights, The Use of Tests as Part of High-Stakes Decision-Making for Students (2000).

Whether Sandoval bars private causes of action for disparate impact regarding gender, language status, and other protected groups is less clear. As you may recall, Chapter 5 included a pre-Sandoval case regarding the gender inequities that resulted from New York’s policy of tying scholarships to student performance on the SAT. See Sharif by Salahuddin v. New York State Educ. Dept., 709 F. Supp. 345 (S.D.N.Y. 1989). Certain aspects of that case may still be valid. Regardless, administrative claims are still available for this and other group-based disparities.

The second limitation on standardized tests comes from basic due process principles. Due process requires reasonable notice of the materials, concepts, and knowledge on which students are to be tested. Otherwise, when schools deprive students of a high school diploma, for instance, they may be depriving students of a property right without notice and a fair opportunity to learn the material. As an initial matter, “courts have required sufficient advance notice of tests required for graduation to give students a reasonable chance to learn the material presented on the test. A particularly important concern in some of these decisions is the adequacy of notice provided to students.…In looking at the length of the transition period needed between the announcement of a new requirement and its full implementation, the kind of test and the context in1004 which it is administered are central factors to be considered.” The Use of Tests as Part of High-Stakes Decision-Making for Students, supra, at 66. Of particular concern are “the nature of instructional supports, including remediation, that accompany the test, whether re-testing is permitted, and whether the decision to promote or graduate the student considers other information about the student’s performance.” Id.

In addition, “[s]everal courts have found that ‘fundamental fairness’ requires that students be taught the material covered by the test where passing the test is a condition for receipt of a high school diploma.…For [a] test to meaningfully measure student achievement, the test, the curriculum, and classroom instruction should be aligned. In cases examining systemwide administration of a test, courts require evidence that the content covered by the test is actually taught, but may not expect proof that every student has received the relevant instruction.” Id. at 67.

As a final note, the use of high-stakes and other tests raises distinct issues in districts that are still under a court order to desegregate or remedy some form of past racial discrimination. See, e.g., Debra P. v. Turlington, 644 F.2d 397, 407 (5th Cir. 1981); McNeal v. Tate Cty. Sch. Dist., 508 F.2d 1017, 1020 (5th Cir. 1975). In this context, a court is far more likely to intervene and strike down the testing regime on any number of statutory or constitutional grounds.

NOTES AND QUESTIONS

1. Is there anything fundamentally unfair about using high-stakes tests to evaluate and make decisions about students?

2. Although some challenges to standardized testing have succeeded, courts have been reluctant to intervene in what are often challenges to a statewide testing system. In explaining its reluctance, one lower court noted that the state had adopted the testing scheme with the specific intent of improving the educational opportunities and outcomes of minority students. See, e.g., GI Forum Image De Tejas v. Texas Educ. Agency, 87 F. Supp. 2d 667, 676 (W.D. Tex. 2000). Should the state’s goal matter if the impact of the testing regime is to disadvantage minority students? What if the short-term, negative impact is necessary to achieve the long-term goal?

3. As you may have noticed in the foregoing excerpts from the Every Student Succeeds Act, states now have far more flexibility in the tests they administer, the weight they assign those tests in measuring a school’s effectiveness, and the instances in which they might intervene in a school with low test scores. See, e.g., Sec. 1111(c)(4)(B).

4. Section 1111(b)(2)(B) of the Act also indicates, consistent with the literature on testing, that the test states adopt “be used for purposes for which such assessments are valid and reliable, consistent with relevant, nationally recognized professional and technical testing standards, objectively measure academic achievement, knowledge, and skills.” Because the Act does not include a private cause of action, it remains to be seen what limits this provision will actually place on test selection and administration.

1 Most of these groups have some national organization that represents them, such as the National School Boards’ Association, National Education Association (teachers), National Parent Teacher Association, and NAACP. There are also policy groups such as the Century Foundation, Center for American Progress, Education Trust, and others that routinely issue analysis of the ESEA. Each of these organizations maintains policy platforms and/or reports that are important to understanding the underlying issues. Because these reports and platforms are regularly updated, this casebook does not attempt to recommend or list any particular ones.

1005

This casebook has examined education primarily from the perspective of students, while emphasizing that teachers are necessarily central to the education that students receive. As various cases in the chapter on poverty and school funding indicated, teachers are the key educational input for ensuring positive student outcomes. As such, any book on education that does not focus on various issues pertaining to teachers would be incomplete. Yet, a chapter devoted solely to teachers presents certain challenges within the scope and focus of this book.

Much of the case law regarding teachers focuses on their individual interests, such as job retention and employment contracts, or the profession’s right to negotiate certain group-based terms of employment. A comprehensive and singular discussion of these rights would stand out against this book’s approach and not fit well in any particular section of the book. While relevant, an extensive discussion of teachers’ rights in the first part of the casebook would be a tangent to the bigger conversation regarding concepts of equality. Likewise, full coverage of the broader concepts of free speech, establishment of religion, and control over the curriculum leave relatively little room for the additional nuances of how teachers exercise their rights within those frameworks. In other words, teachers are everywhere in the preceding chapters of this book but fit solely and squarely nowhere.

The subjects of this chapter on teachers, however, fit well in the reform section of the book because of the particular legal changes to teacher policy over the last decade. Education reform had increasingly translated into teacher reform and vice versa. Having reached a consensus on the importance of quality teaching to student outcomes, the laws and policies affecting teacher rights have become the subject of broader conversations about improving education. No longer are they simply questions of employment benefits and management. The result has been a bevy of legislative activity regarding teacher rights in recent years.

This chapter explores the highlights of those legislative and related changes. The chapter begins, however, with a section on the traditional due process protections afforded to teachers prior to termination. Older cases best demonstrate those protections. The chapter’s second section identifies the limits that1006 state and federal constitutions place on the impairment of contracts. These limits have served to block recent changes to teacher tenure and benefits. The third section in the chapter broadly explores teacher unions and the right to collectively bargain over various terms of employment—another right states have sought to narrow in recent years. The fourth section details the statutory and litigation controversies surrounding the use of students’ standardized test scores to evaluate teachers at the point of hiring, firing, and tenure. The chapter concludes with recent litigation claiming that teacher tenure keeps grossly ineffective teachers in the classroom and, thereby, deprives students of access to the equal and quality education that state constitutions mandate.

A. DUE PROCESS RIGHTS PRIOR TO TERMINATION

Due process ensures that when a teacher has a property interest in current or future employment, the teacher cannot be terminated without the state making a case against the teacher and allowing the teacher a chance to respond. Teachers’ property interests arise from the contracts into which they enter with their school district and/or state statutes that structure that employment relationship. For instance, a temporary or new teacher might sign a one-year contract to teach in a district. Even though the teacher may not yet have acquired tenure or “career” status, that contract creates a property interest in that job during that one-year period. Once the contract expires, the district no longer owes the teacher process because the property right no longer exists. At that point, the district can excuse or choose not to renew the contract within its unilateral discretion (unless some contract or statutory provision states otherwise). Schools, however, rarely terminate a temporary teacher within a single year. Unless a teacher does something incredibly horrendous, the more likely route is to allow the teacher to finish the school year and just not extend the teacher a contract for the next year.

Due process concerns are far more likely to arise once a teacher becomes eligible for tenure or acquires it. At that point, teachers acquire a property right in their continued employment. To deprive a teacher of that property, a district must identify a reason for removing a teacher and afford teachers an opportunity to contest the legitimacy of the reasons. Both the reasons for termination and the opportunity to respond are detailed in state statutes. States typically limit the bases for removal to those specified by statute. If, for instance, a district believed a teacher was a particularly weak teacher, the district would cite to a statutory provision identifying “ineffective teaching” or “incompetence” as the basis for removal. The district would then need to put forth affirmative evidence of the teacher’s ineffectiveness. The teacher could contest that evidence and put forth counter evidence of his or her own. This battle over the evidence would normally take place in the context of some type of administrative hearing, where the teacher might also have an attorney present to represent the teacher’s interests. The process might also include an appeal to some higher education authority and eventually to a court.

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In a typical state, notice and response rights prior to termination are afforded through formal procedures. In North Carolina, statutes previously provided, for instance,

the superintendent shall give written notice to the career employee by certified mail or personal delivery of his or her intention to make [a] recommendation [of termination to the school board] and shall set forth as part of his or her recommendation the [statutory] grounds upon which he or she believes such dismissal or demotion is justified. The superintendent also shall meet with the career employee and provide written notice of the charges against the career employee, an explanation of the basis for the charges, and an opportunity to respond if the career employee has not done so….

N.C. Gen. Stat. Ann. §115C-325 (2012). A teacher may request a review of the charges before an impartial hearing officer or the school board. Id. In either forum, the teacher and the superintendent have the right to be represented by counsel and present evidence. Id. The school board has the authority to reject, accept, or modify the superintendent’s recommendation, but the board’s decision is subject to legal appeal before a court. Id. In short, no matter how good a school’s case for terminating an ineffective tenured teacher, it must go through processes of this sort. Moreover, some states, or local interpretations of state law, have required teachers an attempt to remedy their teaching deficiencies. Only after failed remediation would a teacher be terminated.

Contrary to popular misconception, however, tenure does not entitle teachers to a lifetime job. Rather, tenure entitles teachers to due process prior to losing their job. The point is to “prevent summary and groundless dismissals.” Monica Teixeira de Sousa, The State of Our Unions: How President Obama’s Education Reforms Threaten the Working Class, 50 U. Louisville L. Rev. 201, 207 (2011). In other words, tenure means that districts cannot eliminate teachers without a good reason as defined by statute. Thus, as a practical matter, if a teacher holds up his or her end of the bargain by effectively discharging his or her duties and the district still has sufficient numbers of students to warrant the teacher’s services, a teacher would generally have a right to remain in the job until retirement.

The following cases offer brief examples of these statutory frameworks in action. Numerous new cases regarding teacher dismissal are issued each year, but these older cases are included because they focus most on state key legal concepts and reoccurring practical issues: how much process is due, what types of evidence a school and administrative board might consider, typical grounds for dismissal (ineffective teaching and insubordination), the standard of review by courts evaluating those dismissals, and when an opportunity for remediation might be necessary.

Baxter v. Crosby

257 S.E.2d 71 (N.C. App. 1979)

F. Leona Baxter (“petitioner”) was employed during the 1973-74 school year by the Charlotte-Mecklenburg Board of Education (“the Board”) as a teacher of orthopedically handicapped children. She had attained status as a1008 career teacher as defined by [state statute] G.S. 115-142(a)(3). On 30 April 1974 Superintendent Rolland W. Jones sent a letter to petitioner in which he said:

I am writing to advise you pursuant to North Carolina General Statute 115-142(h)(2) that I intend to recommend to the Board of Education that you be dismissed effective at the close of the 1973-74 school year. The grounds for my recommendation include, but are not limited to, inadequate performance, insubordination, neglect of duty, and failure to comply with requirements of the board.

Petitioner requested a review of his recommendation by a panel of the Professional Review Committee, pursuant to G.S. 115-142(h)(3)(i). [T]he Board voted to suspend petitioner without pay pending final determination of [that review]. The five-member panel of the Professional Review Committee, after conducting a hearing, issued a majority report recommend[ing] that petitioner be reinstated with back pay and retention of tenure and that petitioner be transferred to another school and allowed to teach normal children. A [one-person] minority report stated that petitioner “is guilty of inadequate performance, ‘gross’ insubordination, neglect of duty, and failure to comply with Board requirements.” [Superintendent] Jones [then] submitted, pursuant to G.S. 115-142(i)(5), his written recommendation to the Board that petitioner be dismissed “for reasons set forth in a letter from me to her dated April 30, 1974.”

William E. Poe, Chairman of the Board, informed petitioner pursuant to G.S. 115-142(i)(6) that the Superintendent’s recommendation had been received [and] that she was entitled to a hearing. [T]he hearing was held [and] the Board voted unanimously to terminate petitioner’s employment on the grounds of inadequate performance, insubordination, neglect of duty, and failure to comply with Board guidelines and policy. The Board entered this order after making findings of fact and concluding that “all four (4) grounds for dismissal upon which the Superintendent has based his recommendation of dismissal are true and substantiated upon the basis of competent evidence adduced at these hearings.”

[P]etitioner appealed from the decision of the Board to the Superior Court of Mecklenburg County pursuant to G.S. 115-142(n). She alleged that the board had violated both the provisions of G.S. 115-142 and petitioner’s constitutional due process rights and that the Board’s findings of fact and order were unsupported by any competent evidence. [T]he trial court made detailed findings of fact concerning all prior proceedings in this matter and made the following conclusions: 1. The procedures adopted by the Board and rulings made with reference to the admission of evidence were fair and without error[;] 2. Each of the findings of fact by the Board is supported by substantial, competent evidence[;] 3. The findings of fact by the Board support and justify the Board’s conclusion that the grounds upon which Superintendent Jones recommended petitioner’s dismissal were true and substantiated. On these findings and conclusions, the court affirmed the Board’s order. Petitioner appeals.

The scope of the Superior Court’s review of the Board’s decision in this case and the power of that court in disposing of the case were governed by former1009 G.S. 143-315 (now G.S. 150A-51), which was in effect at the time of the Board hearings in this matter. That statute provided:

The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or (6) Arbitrary or capricious.

Due Process

The petitioner’s first group of contentions concern due process. In addressing these contentions, we rely in large measure on the opinion of this Court by Judge (now Chief Judge) Morris in Thompson v. Board of Education, 230 S.E.2d 164 (1976). Petitioner in the present case, as did the petitioner in Thompson, contends that she has been denied due process. We do not agree. The Charlotte-Mecklenburg Board of Education scrupulously followed the elaborate dismissal procedures mandated by G.S. 115-142. After giving petitioner the required notice, the Board held hearings which extended over three evenings in which the petitioner was represented by counsel, was given the opportunity to cross-examine the Superintendent’s witnesses, and was permitted to present her own evidence.

Petitioner’s contentions regarding due process are largely based on a fundamental misconception of the procedures involved in a case of this nature. The procedures prescribed by G.S. 115-142 for the dismissal of a career teacher are essentially administrative rather than judicial. [T]he Board is not bound by the formal rules of evidence which would ordinarily obtain in a proceeding in a trial court. Nor are the Rules of Civil Procedure applicable. While a Board of Education conducting a hearing under G.S. 115-142 must provide all essential elements of due process, it is permitted to operate under a more relaxed set of rules than is a court of law. Boards of Education, normally composed in large part of non-lawyers, are vested with “general control and supervision of all matters pertaining to the public schools in their respective administrative units,” G.S. 115-35(b), a responsibility differing greatly from that of a court. The carrying out of such a responsibility requires a wider latitude in procedure and in the reception of evidence than is allowed a court.

The Charlotte-Mecklenburg Board of Education employed at petitioner’s hearing the same rule of evidence promulgated by the State Board of Education and used by the Wake County Board of Education in Thompson. The rule permits boards of education to admit and give probative effect to “evidence that is of a kind commonly relied on by reasonably prudent men in the conduct of serious affairs.” Petitioner contends that this rule is constitutionally invalid in that it violated her due process rights. We do not agree. This rule of evidence was approved in Thompson. It allows the boards of education to consider a wide range of evidence, as they properly should, in reaching their decisions. Petitioner’s protection lies in the provision in G.S. 143-315(5) which gives to the1010 Superior Court power to reverse or modify the Board’s decision if petitioner’s substantial rights have been prejudiced because the administrative decision was “(u)nsupported by competent, material, and substantial evidence in view of the entire record.”

Petitioner points to the admission at the hearing of hearsay evidence and contends erroneously that this was reversible error. The Board very properly heard such evidence in this case in order to complete its investigation. Evidence of the sort complained of can, and in this case did, provide the necessary background for understanding the matter into which the Board was inquiring.

Petitioner further argues, under the rubric of due process, that the Board did not have the requisite degree of impartiality and that this lack of impartiality is shown by the manner in which the hearing was conducted. We have examined the transcript of the hearing in detail and find no evidence of actual bias on the part of any Board member. Petitioner lays stress on the following admission made by one of the Board members at the hearing before Judge Griffin in the Superior Court: “As to whether I understood there was some question of physical abuse of children before the hearing began, I knew, I think most people in the community knew the reasons for Mrs. Baxter’s, the recommendation by the Superintendent that she be terminated.”

As above noted, the Board of Education is vested by G.S. 115-35(b) with general supervisory authority over the schools within its administrative unit. In the exercise of this authority Board members have a duty to keep themselves apprised of situations such as the one the evidence presented at the hearing in this case discloses. As Judge Morris pointed out in this Court’s opinion in Thompson v. Board of Education, supra, “mere familiarity with the facts of a case gained by an agency in the performance of its statutory duties does not disqualify it as a decisionmaker.”

After a thorough examination of the transcript of the hearing before the Board we affirm the finding of the Superior Court that “the procedures adopted by the board and rulings made with reference to the admission of evidence were fair and without error.”

Substantial Evidence in View of the Entire Record

The petitioner’s second and final major contention is that the Superior Court erred in its finding that “(e)ach of the findings of fact by the Board is supported by substantial, competent evidence.” The required standard of review [is] as follows:

This standard of judicial review is known as the “whole record” test and must be distinguished from both De novo review and the “any competent evidence” standard of review. The “whole record” test does not allow the reviewing court to replace the Board’s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it De novo. On the other hand, the “whole record” rule requires the court, in determining the substantiality of evidence supporting the Board’s decision to take into account whatever in the record fairly detracts from the weight of the Board’s evidence. Under the whole evidence rule, the court, may not consider the evidence which in and of itself justifies the Board’s result, without taking into1011 account contradictory evidence or evidence from which conflicting inferences could be drawn.

Thompson, 233 S.E.2d at 541.

The grounds on which the Board based its order that petitioner be dismissed are set forth in G.S. 115-142(e): (1) No career teacher shall be dismissed or demoted or employed on a part-time basis except for: a. Inadequate performance; c. Insubordination; d. Neglect of duty; j. Failure to comply with such reasonable requirements as the board may prescribe[.]

Our task on this appeal is, by application of the “whole record” test to the record of the hearings before the Charlotte-Mecklenburg Board of Education, to determine whether there is substantial evidence, looking at the record as a whole, of any one of the four grounds which formed the basis of the Board’s dismissal order.

The finding of fact was that the petitioner was guilty of insubordination. The Board found that petitioner’s insubordination consisted of her continued administration of corporal punishment to her handicapped students after being specifically instructed by her principal, Mrs. Crosby, not to do so without the principal’s prior approval and the presence of an adult witness. This finding is amply supported by substantial evidence in the record.

Mrs. Crosby, the principal, testified that she received a complaint from the parents of Susan Chapman that petitioner “had been hitting Susan in the head.” Petitioner admitted at the hearing that she had “tapped” Susan Chapman. Petitioner’s classroom aide testified at the hearing that she had seen petitioner whip Susan Chapman “several times.” Mrs. Crosby called in petitioner [and instructed her to not strike or even punish her students without the principal’s presence, an instruction which other witnesses confirmed hearing].

Principal Crosby received a [subsequent] complaint that petitioner had hit [another student]. At the time [and at the hearing], petitioner admitted striking the boy, but said, “I just tapped him.” Principal Crosby wrote a letter detail[ing] the incident [and other] parental complaints, and asked petitioner once again “to refrain from this sort of practice.”

[When] petitioner came up for consideration for tenure[,] Principal Crosby expressed to petitioner orally and in person her reservations about giving petitioner tenure. Crosby stated that she agreed to give petitioner tenure upon her word that she would not strike the children any more, and petitioner [agreed]. [In an evaluation letter, which Petitioner received, Crosby wrote that] “Miss Baxter was experiencing difficulty in classroom management and was employing the use of physical punishment in an improper manner. She has made improvement in this area. It is understood, by her, that this type [of] punishment is not acceptable.” [At the hearing,] Principal Crosby explained that by “improper manner” she meant that she expected petitioner to bring the child to the principal’s office and whip it there, if petitioner had to whip it, so that at least the whipping would be in the principal’s presence. Crosby testified that petitioner never brought a child to her office for paddling.

[Over the next year, Crosby received additional complaints that Baxter had struck two students, which Baxter admitted and other school personnel1012 confirmed seeing. Thus, “by petitioner’s own admission” and the testimony of independent sources,] she struck [two students] in violation of her principal’s orders. We find that the Superior Court was correct in concluding that the Board’s finding of insubordination was based on substantial evidence. We need not pass on the question whether the evidence of the other three grounds was substantial. A finding that the evidence of any of the grounds listed under G.S. 115-142(e)(1) was substantial justifies dismissal where, as here, the teacher was notified that dismissal was based on that ground.

The Superior Court’s order affirming the order of the Board of Education’s order terminating petitioner’s employment is Affirmed.

NOTES AND QUESTIONS

1. To what extent do schools have discretion in grounds upon which they might terminate a teacher? To what extent are they limited? Are there additional grounds for dismissals that should be afforded to schools? Are there any grounds that should be excluded?

2. What procedural steps must a school take to remove a teacher in North Carolina? Do these steps provide sufficient protections for teachers? Do they place too much of a burden on schools? What is the purpose or goal of affording teachers these protections?

3. What evidence and information can a board rely or not rely on in its decision to remove a teacher? Does the process include evidence that is unreliable or should be excluded? Are there any problems with allowing a wide array of evidence in these cases?

4. Based on the standard of review in this case, how likely is it that a court will reverse a school’s decision to terminate a teacher?

5. Most states tend to follow a common pattern regarding the grounds for dismissal, including “immorality, criminal conviction, fraud, misrepresentation, incompetency, insubordination, neglect of duty, [and] substantial noncompliance with school laws” in some form as statutory grounds. Joseph O. Oluwole, Tenure and the “Highly Qualified Teacher” Requirement, 8 Whittier J. Child & Fam. Advoc. 157, 175 (2009). Some, however, also include the catchall “other good and just cause,” which theoretically expands the grounds for dismissal. Id. For instance, a school district might argue that a teacher’s failure to meet new teacher certification requirements issued by the state is a good or just cause for termination, although a teacher might still defend that he or she is still otherwise an effective teacher. Id. at 182. If new certification or other requirements are imposed too quickly, teachers might also defend on the basis that they have not been afforded sufficient notice of those requirements nor an adequate amount of time to meet them. Jerry R. Parkinson, The Use of Competency Testing in the Evaluation of Public School Teachers, 39 U. Kan. L. Rev. 845, 866-867 (1991). For a full explanation of the varying grounds for dismissal, see Oluwole, supra at 174-183.

1013

6. Several states distinguish between dismissals based on misconduct and dismissals based on poor performance, and follow a slightly different process for each. Misconduct might include, for instance, striking a student, committing a felony inside or outside school, or immoral behavior. Whereas, poor performance would pertain to the quality of teaching itself. Allegations of misconduct might lead to a teacher in some states being immediately placed on leave (with or without pay depending on the state) pending an investigation into the misconduct itself. See, e.g, Homa v. Carthage R-IX Sch. Dist., 345 S.W.3d 266, 272 (Mo. Ct. App. 2011). Whereas, termination for poor performance most often requires far more notice and a lengthier process.

7. The forgoing due process rights may also intersect with free speech rights. One can easily imagine a teacher making statements or holding opinions that place him or her at odds with a principal or the superintendent. When those matters fall within a teacher’s exercise of First Amendment rights, teachers should be protected from removal. With that said, what is to be taught and how falls within the authority of the state and district. Thus, if a teacher refuses to comply with state or district rules under the guise of exercising free speech, the teacher can be subject to dismissal based on violation of rules, insubordination (if specifically instructed to follow some existing rule or newly stated directive), or failure to effectively discharge his or her duty. For more on the line between teachers’ free speech and insubordination, see Chapter 10.

Crump v. Durham County Board of Education

74 N.C. App. 77 (1985)

The respondent Board of Education, after a hearing, dismissed petitioner from her school teaching job on the grounds of inadequate performance. Her dismissal had been recommended by the Superintendent of Durham County Schools and was approved by the Professional Review Committee. The decision of the respondent Board was reviewed and affirmed by the Superior Court and petitioner’s appeal is therefrom.

During the hearings conducted by the Professional Review Committee and the respondent Board evidence to the following effect was presented: petitioner had been a junior high school teacher in the Durham County school system for twenty-seven years and had taught science for several years. During the 1980–81 school term there were many disciplinary problems in petitioner’s classroom, and at the end of the term the school principal, Mr. Barry, discussed these problems with her. Shortly before the 1981–82 school term began respondent received a letter from a student’s parent complaining of petitioner’s failure to maintain order in her classroom during the preceding term. The letter, which listed several specific disturbances by students that petitioner allegedly did nothing about, was put in her personnel file. After that Principal Barry and Mr. Gatling, the co-ordinator of mathematics and science teaching programs in the county, met with petitioner and suggested ways that she could improve both her classroom control and teaching effectiveness, and Gatling made1014 periodic visits to petitioner’s classroom. At the end of the 1981–82 school term Principal Barry again recommended that petitioner take various steps to improve classroom discipline and placed her on marginal status. During the second semester of the 1982–83 school term Principal Barry [and Mr. Gatling] visited petitioner’s classroom often and noted [numerous] instances of uncorrected student misconduct[, including students walking around and talking during class, “throwing papers at each other and the teacher,” and “climbing in and out of windows.”] Both Principal Barry and Mr. Gatling advised petitioner in writing of the various delinquencies noted, made specific suggestions for improving her classroom discipline and teaching techniques, required her to observe the classroom methods of an exemplary teacher in another school for a week and the respondent Board paid her substitute; but neither petitioner’s control of her class nor her teaching methods improved. [The teacher in the classroom next door indicated that petitioner’s class was so unruly that it often disturbed her classroom as well.]

In April, 1983 the county school superintendent recommended that petitioner be dismissed from her teaching job on the grounds of inadequate performance. This recommendation was approved by the Peer Review Committee in June, 1983 and she was dismissed by the respondent Board on August 15, 1983.

[Petitioner contends] that G.S. 115C–325(e)(1), which authorizes the dismissal of a career teacher for “inadequate performance,” is unconstitutionally void for vagueness. That [contention] was considered and rejected in Nestler v. Chapel Hill/Carrboro City Schools Board of Education for the reason that the term “inadequate performance” in regard to a job can be readily understood by any person of ordinary intelligence who knows what the job entails. Nor is the statute unconstitutional as applied in this case to petitioner. The evidence clearly shows that she was aware that her job as a schoolteacher entailed maintaining good order and discipline in the classroom, as G.S. 115C–307(a) provides, and that her alleged failure to maintain good classroom order on numerous, specific occasions was the basis for the steps taken to dismiss her.

Petitioner’s final contention, that in view of the whole record there is no substantial evidence to support her dismissal for inadequate performance of her job, is likewise without merit and is overruled. That the evidence referred to above substantially supports the conclusion that petitioner inadequately performed her duty to maintain good order and discipline in the classroom is, we think, self-evident. Though it is fundamental and generally known that students cannot effectively learn and teachers cannot effectively teach in an unruly, chaotic, noisy, disruptive classroom, that is just the kind of classroom that petitioner had and was apparently satisfied to have over a long period of time, according to the testimony of the three professional educators who had seen or heard students misbehave in her classroom on many different occasions. The only evidence of probative value that might detract from all this direct evidence of petitioner’s failure to maintain good order in her classroom, and therefore must be considered under the “whole record” test is the following: Petitioner’s testimony that some of the disorders that occurred during Principal Barry’s surveillance of her classroom were aggravated by his failure to correct the misbehaving students, but the duty to maintain control of the classroom was hers,1015 not his, as she conceded; and the testimony of one of petitioner’s many students that she is a good teacher. In all events, all of the other evidence relating to petitioner’s classroom control by whoever presented detracts not a whit from the great volume of direct evidence that the respondent Board presented as to petitioner’s failure to maintain any semblance of good order and discipline in her classroom on innumerable occasions.

The argument that petitioner’s failure to maintain order was because she had more than her share of problem students is not supported by the evidence, including petitioner’s own testimony. And the further argument that her classroom discipline and control was no worse than that maintained by other teachers is both irrelevant and at variance with much evidence and the Board’s finding that the disturbing misconduct that repeatedly occurred in petitioner’s classroom did not occur in other rooms, even though all of petitioner’s students were in other classrooms for six periods each school day.

NOTES AND QUESTIONS

1. Is “inadequate performance” a sufficiently clear basis for removing a teacher or is it vague enough to allow administrators to abuse their discretion and remove teachers as they see fit? Why does the court reject petitioner’s challenge to this standard? Some courts have reasoned that the level of potential discretion embodied in the concept renders it unenforceable while others reason that the concept has its own reasonable meaning within the teaching profession or state regulatory structure. Compare Cty. Bd. of Educ. of Clarke Cty. v. Oliver, 116 So. 2d 566, 567 (1959) (“[T]he term ‘incompetent’ is generic in its meaning and of itself conveys no information of the particular act of commission or omission, or want of qualification which will authorize the conclusion that the individual having such status or guilty of such act or omission is incompetent.”) (citing Ridgway v. City of Fort Worth[, 243 S.W. 740 (Tex. Civ. App. 1922)], with Sekor v. Bd. of Educ. of the Town of Ridgefield, 689 A.2d 1112, 1119 (Conn. 1997) (“[T]he essential inquiry, when a board decides to terminate a teacher for incompetence under §10–151, is whether the teacher’s overall performance falls below the requisite standard.”); Benke v. Neenan, 658 P.2d 860, 861 (Colo. 1983) (“Competence indicates the ability to perform ably and above a minimum level of sufficiency.”).

2. Without challenging the facts regarding disorder in her class, Crump seems to shift the blame to school administration in two respects: that the principal did not sufficiently ensure order and that she was saddled with a disproportionate number of students with problematic behavior. Are either of her points persuasive? Should the board or court have considered the latter issue more closely? Is it possible that the school was setting her up for a dismissal?

3. Given the anecdotal stories portrayed in the media and by anti-tenure advocates, does it surprise you that the removals of the teachers in Baxter and Crump were relatively straightforward? To be clear, however, both school systems spent months documenting the deficiencies in these teachers and attempting to remediate them in some respect. Should schools be required to go through1016 these various steps to remove individuals who would appear to be entirely unfit for their jobs? What purpose, if any, do these steps serve?

4. Federal data indicates that approximately 2 percent of teachers are dismissed or do not have their contracts renewed each year. Nat’l Ctr. for Educ. Statistics, Schools and Staffing Survey (SASS) tbl.8 (2011–12), http://nces.ed.gov/surveys/sass/tables/sass1112_2013311_d1s_008.asp (national average of 187 teachers per district and 3.5 dismissals or nonrenewals). The highest rates of dismissal and nonrenewal were 4 and 8 percent in Alabama and the District of Columbia, respectively. Id.

Adams v. Clarendon County School District No. 2

241 S.E.2d 897 (S.C. 1978)

The appellant was a classroom teacher at Manning High School when the events leading to this appeal arose. By hand delivered letter of March 10, 1976, the appellant was informed by the principal that he was not going to be recommended as a teacher for the following school year. The reasons for such action were stated in the letter, from which we quote: “1. General incompetence. Your educational level and written and oral communications are at such a low level as to render you ineffective as a Manning High School Teacher. 2. Apparent inability to comprehend and follow instructions. 3. Apparent inability to keep accurate and necessary school records.”

On March 29, the principal wrote another letter to the appellant giving particulars in support of the reasons prompting his recommendation for non-renewal. The appellant was advised of his right to a hearing and a hearing was held at his request. No objections have been made as to the sufficiency of this hearing. After the hearing, the appellant was advised by letter of May 7 that the board of trustees was non-renewing his contract in accordance with the principal’s recommendation.

Throughout these proceedings the appellant has never contested on the merits the grounds given for termination of his contract. His sole ground for attacking the non-renewal is failure of the respondents to comply with §59-25-440 of the Employment and Dismissal Act. That section provides as follows:

Whenever a principal or other school administrator charged with the supervision of a teacher finds it necessary to admonish a teacher for a reason that he believes may lead to dismissal or cause the teacher not to be reemployed he shall: (1) bring the matter in writing to the attention of the teacher involved and make a reasonable effort to assist the teacher to correct whatever appears to be the cause of potential dismissal or failure to be reemployed and, (2) except as provided in §59-25-450, allow reasonable time for improvement.

The appellant contends that, with the exception of situations where immediate suspension is permitted (see §59-25-450), compliance with §59-25-440 is a mandatory prerequisite to dismissal of a teacher for cause.

There is no question that if §59-25-440 is applicable to the present case, the school board has not complied with that section and the appellant would have to1017 prevail. However, we find the section is inapplicable and hold that the appellant’s termination was proper under authority of Code §59-25-430 which provides:

Any teacher may be dismissed at any time who shall fail, or who may be incompetent, to give instruction in accordance with the directions of the superintendent, or who shall otherwise manifest an evident unfitness for teaching; Provided, however, that notice and an opportunity shall be afforded for a hearing prior to any dismissal. Evident unfitness for teaching is manifested by conduct such as, but not limited to, the following: persistent neglect of duty, willful violation of rules and regulations of district board of trustees, drunkenness, violation of the law of this State or the United States, gross immorality, any cause involving moral turpitude, dishonesty, illegal use, sale or possession of drugs or narcotics.

Although the appellant has ably argued his views with respect to the applicability of §59-25-440, we feel he has viewed the section in isolation from the other provisions of the Employment and Dismissal Act. We cannot ignore §59-25-430 which, too, is a part of the Employment and Dismissal Act and which was enacted at the same time as the section upon which the appellant relies. It is the duty of this Court to give all parts and provisions of a legislative enactment effect and reconcile conflicts if reasonably and logically possible. And, of course, where we are called upon to interpret statutes, we must be mindful of the principle that the intention of the legislature is the primary guideline to be used.

The section upon which the appellant relies is only one facet of a comprehensive legislative scheme designed to afford the teacher safeguards against arbitrary discharge from employment while at the same time recognizing the public’s legitimate interest in quality education.

A school board has long had the power to discharge teachers “when good and sufficient reasons for so doing present themselves,” S.C. Code §59-19-90(2) (1976). The Employment and Dismissal Act was not so much intended to limit this power as it was intended to prevent its abuse. As we perceive it, the Act has clearly separated the circumstances for which a teacher may be discharged for cause into two categories. One of these categories is explicitly set out in §59-25-430 and the other is implicit in §59-25-440.

Section 59-25-430 provides that a teacher may be dismissed for “evident unfitness for teaching.” This section expressly authorizes dismissal “at any time,” subject, of course, to the rights of notice and a hearing. Section 59-25-440, on the other hand, while not expressly setting forth any grounds for dismissal, requires notice “in writing” and a “reasonable time for improvement” whenever a “reason (which) may lead to dismissal or cause a teacher not to be reemployed” becomes the subject of an admonition by designated school authorities. Under this section it is clear that “a reason” which may lead to the termination of employment does not become a “good and sufficient” reason (§59-19-90(2)) until after a reasonable time for improvement has been allowed. In other words it would seem that it is the failure to improve which constitutes the “good and sufficient” reason warranting the termination of employment.

Unless we are to attribute inconsistency to the legislature, the two sections in question must speak to different categories of grounds for dismissal. Section 59-25-430 identifies what is subject to its provisions, namely, an evident unfitness for teaching. It logically follows, then, that §59-25-440 must address those1018 deficiencies or shortcomings other than those which manifest an evident unfitness for teaching but which do, nevertheless, constitute improper performance of employment duties.

We turn now to the facts of the present case. Although the March 10th letter to the appellant set forth three grounds as the basis for recommending termination of the appellant’s employment, we deal with only the first ground since we find this ground alone was sufficient to bring the appellant under §59-25-430 and subject him to dismissal at any time.

The first ground charged the appellant with a low level of both oral and written communication to the extent that he was rendered ineffective as a Manning High School teacher. He was further accused of “general incompetence.” The principal informed the appellant in the letter of March 29 that the reason he considered the appellant “incompetent” was because of his “low basic level of English.” Not only is this allegation amply supported by the record, the appellant does not deny or contest it.

Allegations of incompetence or evident unfitness for teaching are broad terms and ones that should be closely scrutinized when offered as a ground for teacher dismissal. However, in the present case the task is simplified in that it is apparent that the appellant does not possess even a rudimentary competence in English. Deficiency in such a basic skill is proof of “evident unfitness for teaching” when one considers that the appellant is a teacher in an institution charged with the duty of imparting the very skills he lacks. The nature of the position itself dictates that, for one who occupies it, a competence in basic language skills is an indispensable tool.

Since we have found that the termination of the appellant’s employment is authorized by §59-25-430, the fact that the school board allowed him to serve out the remainder of the school year gives the appellant no cause to complain. Although the appellant sees an inconsistency in the actions of the school board in allowing him to serve out his contract even though school authorities had been aware of his deficiencies for some time, we find that the timing of termination was solely within the discretion of the board. Section 59-25-430 expressly authorizes dismissal “at any time.” Simply because the board chose to “non-renew” instead of “dismiss” does not alter the fact that the board had the power to discharge the appellant at any time after evident unfitness for teaching manifested itself. The only real distinction between “non-renewal” and “dismissal” as it bears on the facts of this case is one of when termination was to be effective during or at the close of the school year. Given proper grounds for discharge under §59-25-430, all that was required was prior notice and an opportunity to be heard. The appellant was accorded both.

NOTES AND QUESTIONS

1. South Carolina statutes do not specifically grant teachers tenure or career status, but as a practical matter achieve the same result through two processes: automatic contract renewals prior to the end of each school year (or continuing1019 contracts) and requirements that dismissals be for good cause. See, e.g., S.C. Code Ann. §§59-25-410, 59-25-430.

2. On the one hand, §59-25-430 would appear to make it easier to remove teachers in South Carolina than in other states, whereas §59-25-440 would appear to require teacher remediation prior to removal. How does the court reconcile these two statutory provisions?

3. Should Adams have been afforded remediation prior to his termination? Why did the court conclude he was not? Is the court’s rationale sound? When exactly are South Carolina teachers entitled to remediation? When are they not? Is the concept of remediation itself a defensible one or simply a self-serving benefit that teachers have secured through the political process?

4. Interestingly, in 2011-2012, the dismal and nonrenewal rate in South Carolina was 1.3 percent, significantly below the national average. Nat’l Ctr. for Educ. Statistics, Schools and Staffing Survey (SASS) tbl.8 (2011-2012), http://nces.ed.gov/surveys/sass/tables/sass1112_2013311_d1s_008.asp. Does this suggest that dismissal rates are affected by more than just the strength or weakness of the statutory protections provided to teachers? What other factors might affect teacher dismissal rates?

B. LIMITATIONS ON CHANGING TEACHERS’ CONTRACT RIGHTS

The forgoing due process rights primarily address the rights of individual teachers facing termination, demotion, or layoff. Those protections, however, do not necessarily protect teachers as a group when a state decides to alter tenure itself or other group-based teacher rights and interests. Could a state, for instance, repeal its tenure statutes or good-cause dismissal protections? Contract rights, rather than due process, provide the most likely limitation on state actions of this sort.

Both the Contracts Clause of the U.S. Constitution and the analogous provisions in state constitutions prohibit states from impairing contractual obligations. In other words, if parties enter into legally binding contracts, the state cannot, after the fact, simply eliminate or substantially alter those contracts. The Supreme Court has articulated a three-part test for evaluating Contracts Clause claims: (1) whether there is a contractual relationship, (2) whether a change in law impairs that contractual relationship, and (3) whether the impairment is substantial. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978). State courts have adopted identical tests for evaluating state contract clause claims.

In recent years, these Contracts Clause principles have become increasingly important. During the Great Recession, several states sought to alter the benefit packages of teachers as a way of balancing the budget in the face of falling tax revenues. See, e.g., Madison Teachers v. Walker, 851 N.W.2d 337 (2014)1020 (evaluating the Wisconsin Budget Repair Act of 2011). Likewise, calls by the U.S. Department of Education to improve teacher evaluation systems generated a flurry of legislative changes to teacher tenure and dismissal. See U.S. Dep’t of Educ., Race to the Top Program Executive Summary 2-3 (2009); Benjamin Michael Superfine, The Promises and Pitfalls of Teacher Evaluation and Accountability Reform, 17 Rich. J.L. & Pub. Int. 591, 592 (2014). The response was a significant increase in litigation. North Carolina offers one of the best examples, with its supreme court holding that the state was free to change tenure rules for future teachers but could not impair the contractual rights of existing teachers whose contracts had already included the protections of the old system.

North Carolina Association of Educators v. State

786 S.E.2d 255 (2016)

Until 2013, North Carolina public school teachers were employed under a system usually described generically as the “Career Status Law,” through which teachers could earn career status after successfully completing a probationary period and receiving a favorable vote from their school board. N.C.G.S. §115C–325 (2012). That process changed with passage of the Current Operations and Capital Improvements Appropriations Act of 2013 (“the Act”). Details of the Act are described below, but most pertinent to the case at bar, the Act retroactively revoked the career status of teachers who had already earned that designation by repealing the Career Status Law (“Career Status Repeal”), and created a new system of employment for public school teachers.

Plaintiffs allege that the Act violate[s] Article I, Section 10 of the United States Constitution (forbidding passage of any “Law impairing the Obligation of Contracts”) and Article I, Section 19 of the North Carolina Constitution (the Law of the Land Clause), as it applied to teachers who have previously earned career status. We conclude that repeal of the Career Status Law unlawfully infringes upon the contract rights of those teachers who had already achieved career status.

We begin our analysis with an overview of the evolution of state statutes that have controlled career status of public school teachers. For over four decades, North Carolina public schools have operated under what was commonly called the Career Status Law, a statutory framework setting out a system for the employment, retention, and dismissal of public school teachers. However, little in this framework has remained static over the years.

Beginning in 1971, the General Assembly created a procedure through which teachers who were employed for at least three consecutive years as probationers would bec[o]me “career teachers” if the school board voted to reemploy the teacher for the upcoming school year. See 1971 N.C. Sess. Laws 1396 (codified at N.C.G.S. §115–142 (1971)). In addition, any teacher who had been employed in the same public school system for four consecutive years or been employed by the State as a teacher for five consecutive years would automatically became a career teacher. These career teachers could only be dismissed for1021 one of twelve grounds specified in the statute. If a teacher was to be dismissed, the act provided for notice and [a hearing. Over the next five decades, the system was “subject to continual tinkering and revision by the General Assembly,” including adding new grounds for dismissing teachers, shortening and then lengthening the time necessary to receive career status, modifying the appeals process and the persons responsible for hearing them, and defining “inadequate performance.”]

The employment system in place at the time of the passage of the Act was codified under N.C.G.S. §115C–325 (2012) and established two classes of public school teachers[: probationary and career teachers]. Probationary teachers were employed through annual contracts with the local board of education. These contracts were subject to nonrenewal for any reason that was not “arbitrary, capricious, discriminatory or for personal or political reasons.” Id. [After four years, probationary teachers were eligible for career status and, if denied, were entitled to notice and a hearing before their school board.]

Career status teachers could only be dismissed, demoted, or relegated to part-time status based on one or more of fifteen specified statutory grounds. Prior to making a recommendation for dismissal, demotion, or relegation to part-time status of a career status teacher, the superintendent was required to give written notice of the grounds on which he or she believed the action to be justified. Upon receipt of such written notice, a career teacher had a right to request a hearing before a hearing officer to contest the superintendent’s recommendation, at which the career teacher was entitled “to be present and to be heard, to be represented by counsel and to present through witnesses any competent testimony relevant to the issue of whether grounds for dismissal or demotion exist.” The decision of the hearing officer could be further appealed to the full school board.

Now the Career Status Law, N.C.G.S. §115C–325 (2012), is no more. [In 2013, t]he Act revoke[d] career status for all teachers. Under the new system, teacher contracts are not open-ended, as was previously the case for career teachers, but instead extend “for a term of one, two, or four school years.” A decision not to renew a teacher’s contract can be based on any reason not “arbitrary, capricious, discriminatory, for personal or political reasons, or on any basis prohibited by State or federal law.” The superintendent must give the teacher written notice of a decision to recommend nonrenewal. Within ten days of receiving such notice, the teacher can petition the local school board for a hearing, but the school board has discretion whether to grant the request. Dismissal, demotion, or a change to part-time status during the term of the contract remains based on the fifteen statutory grounds and procedure set forth previously in the Career Status Law. Any teacher who had not achieved career status “prior to the 2013–2014 school year” is no longer eligible to receive career status in the future and will instead be employed primarily by one-year contracts.

This Court presumes that statutes passed by the General Assembly are constitutional and duly passed acts will not be struck unless found unconstitutional beyond a reasonable doubt. Even so, we review de novo any challenges to a statute’s constitutionality.

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Plaintiffs first allege that the Career Status Repeal violated Article I, Section 10 of the Constitution of the United States by impairing the contract rights of teachers who had earned career status before the repeal. The Contract Clause, “one of the few express limitations on state power” in the Constitution, provides that “[n]o State shall…pass any…Law impairing the Obligation of Contracts,” U.S. Const. art. I, §10. [T]his Court uses the three-factor test set out in Bailey to determine whether a Contract Clause violation exists.

Accordingly, we first consider whether any contractual obligation arose from the statute making up the now-repealed Career Status Law. The United States Supreme Court has recognized a presumption that a state statute “is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” Dodge v. Bd. of Educ., 302 U.S. 74, 79 (1937). This presumption is rooted in the longstanding principle that the primary function of a legislature is to make policy rather than contracts. Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938). A party asserting that a legislature created a statutory contractual right bears the burden of overcoming that presumption by demonstrating that the legislature manifested a clear intention to be contractually bound, Nat’l R.R. Passenger Corp. v. Atchison, 470 U.S. 451, 466 (1985). Construing a statute to create contractual rights in the absence of an expression of unequivocal intent would be at best ill-advised, binding the hands of future sessions of the legislature and obstructing or preventing subsequent revisions and repeals. We are deeply reluctant to “limit drastically the essential powers of a legislative body” by finding a contract created by statute without compelling supporting evidence.

This requirement for explicit indications of legislative intent is shown in two United States Supreme Court cases in which the use or omission of the word “contract” in the statute was deemed critical. In Phelps v. Board of Education, that Court considered a New Jersey employment system where, after completing three years of service, teachers were hired for an ongoing open-ended period during which they could not be dismissed or subjected to a reduction in salary without notice and a hearing. The Supreme Court found that this system did not set up a contract but instead “established a legislative status for teachers,” and was a “regulation of the conduct of the board” that created no binding obligation. However, the Court shortly thereafter distinguished Phelps in Brand, 303 U.S. 95, when it held that Indiana’s “Teachers’ Tenure Act” created a statutory contractual right between the teachers and a local school district. In Brand, the Court looked specifically to the language of Indiana’s Act, noting that the word “contract” was peppered throughout nearly every section of the statute.

These cases indicate that courts must consider the language used by the legislature to determine whether a statute “provides for the execution of a written contract on behalf of the state.” North Carolina’s Career Status Law does not present the type of unmistakable legislative intent found by the United States Supreme Court in the statute at issue in Brand. Nowhere in the portion of section 115C–325 establishing the promotion of a teacher to career status does the word “contract” appear. The word “contract,” as used in the remainder of our Career Status Law refers only to individual contracts with the local school boards and1023 relationships between teachers and the local school system, with no mention of the State.

Turning next to cases from this Court, we considered an alleged Contract Clause violation in the context of retirement benefits and in the context of disability retirement payments. In [those] cases, this Court held that vested contractual rights were created by the statutes at issue because, at the moment the plaintiffs fulfilled the conditions set out in the two benefits programs, the plaintiffs earned those benefits. Though the benefits would be received at a later time, the plaintiffs’ right to receive them accrued immediately, became vested, and a contract was formed between the plaintiffs and the State. In other words, the retirement benefits [and] disability payments were [not] based upon future actions by the plaintiffs. Instead, those benefits had been presently earned and became vested as the plaintiffs performed, even though payment of those benefits was deferred until a later time.

In contrast, a teacher has no vested career status rights at the end of the probationary period. Instead, after successfully meeting all the requirements, a teacher could enter a career contract with the school board. Thus, we see that the Career Status Act is a regulation of conduct through which local school boards can exercise their discretion to enter into contracts with teachers for whom they approve career status. The Career Status Law contemplates the creation of individual contracts between school boards and teachers but does not itself establish any benefit provided to teachers by the State nor create any relationship between them. As a result, plaintiffs have not overcome the strong presumption against finding a vested right created by the Career Status Law.

In addition, the oft-amended course of the Career Status Law over the decades is evidence that the State did not intend to create a contract with teachers by the terms of the statute. Each new version of the statute did not immediately create a vested contract between the State and public school teachers. The amendments instead altered details of career status while leaving the overall career status system intact, thereby allowing the possibility of future modifications and amendments as needs arose. Accordingly, we conclude the Career Status Law did not itself create any vested contractual rights.

However, our analysis does not end here. “[L]aws which subsist at the time and place of the making of a contract…enter into and form a part of it, as if they were expressly referred to or incorporated in its terms.” Before receiving career status, plaintiffs entered individual contracts with the local school boards. Implied as a part of each of these contracts was the Career Status Law. As the State concedes in its brief, the “applicable statutory terms must be read into the contracts” and the contracts “[i]ncorporat[ed] the statutory body of ‘school law’ applicable to Plaintiffs as teachers.” The statutory system that was in the background of the contract between the teacher and the board set out the mechanism through which the teachers could obtain career status. A teacher’s career status rights under the Career Status Law become vested only upon completing several consecutive years as a probationary teacher and then receiving approval from the school board. Thus, vesting stems not from the Career Status Law, but from the teacher’s entry into an individual contract with the local school system. At the time the parties made the contract, the right to career status vested. At1024 that point, the General Assembly no longer could take away that vested right retroactively in a way that would substantially impair it.

The record demonstrates the importance of those protections to the parties and the teachers’ reliance upon those benefits in deciding to take employment as a public school teacher. [Teachers have been] promised career status protections in exchange for meeting the requirements of the law, relied on this promise in exchange for accepting their teacher positions and continuing their employment with their school districts, and consider the benefits and protections of career status to offset the low wages of public school teachers. Thus, we conclude that, although the Career Status Law itself created no vested contractual rights, the contracts between the local school boards and teachers with approved career status included the Career Status Law as an implied term upon which teachers relied.

We next move to the second part of a Contract Clause analysis in which we consider whether the vested rights found above were substantially impaired by the Career Status Repeal. “Total destruction of contractual expectations is not necessary for a finding of substantial impairment.” However, a showing that the change in the law results in an outcome different from that “reasonably expected from the contract” may be sufficient to show a substantial deprivation.

The benefits enjoyed by career teachers have been described above, most of which boil down to enhanced job security. The Career Status Law establishing those benefits was replaced by a new system that eliminates career status entirely, allowing local school boards and teachers to enter into contracts in durations of only one, two, or four years. Nonrenewal of these shortened contracts can be based on any reason not “arbitrary, capricious, discriminatory, for personal or political reasons, or on any basis prohibited by State or federal law.” If the superintendent recommends that a teacher not be renewed, the teacher can petition for a hearing but the school board has unrestricted discretion whether to grant or deny that request.

We hold that these changes are a substantial impairment of the bargained-for benefit promised to the teachers who have already achieved career status. Retroactively revoking this status from those whose career status rights had already vested deprives career teachers of the promise of continuing employment, as well as the right to a hearing in circumstances in which their now-shortened contracts may not be renewed. Plaintiffs’ affidavits indicate they relied both on the promise of continued employment as a form of added compensation to supplement their lower salaries and on the benefits of career status when deciding to continue teaching in the public school systems. Elimination of these benefits substantially deprives current career status teachers of the value of their vested contractual rights.

Under the third prong of the test, a substantial impairment of contractual rights can still be upheld if the impairment was a reasonable and necessary means of serving a legitimate public purpose. The Contract Clause is not meant to bind the hands of the State absolutely. The Clause’s “prohibition must be accommodated to the inherent police power of the State ‘to safeguard the vital interests of its people.’” Energy Reserves Grp. v. Kansas Power & Light, 459 U.S. 400, 410 (1983). Courts weigh a state’s interest in exercising its police1025 power against the impairment of individual contractual rights when determining whether the impairment is sufficiently justified. This portion of the inquiry involves a two-step process, first identifying the actual harm the state seeks to cure, then considering whether the remedial measure adopted by the state is both a reasonable and necessary means of addressing that purpose.

Accordingly, we consider the interest the State argues is furthered by repealing the Career Status Law. The burden is upon the State when it seeks to justify an otherwise unconstitutional impairment of contract. Relying on Article I, Section 15 of our constitution, which establishes the duty of the State to guard and maintain the people’s right to the privilege of education, the State claims that improving public education is an essential constitutional responsibility. Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 614–15 (2004) (“[T]he State and State Board of Education had constitutional obligations to provide the state’s school children with an opportunity for a sound basic education, and that the state’s school children had a fundamental right to such an opportunity.” The State argues that “the goal of the Career Status Repeal was to address ‘adequate’ but marginal teachers with career status” as part of a series of reforms intended to improve the deficiencies in the State’s public school system.

We fully agree that maintaining the quality of the public school system is an important purpose. Nevertheless, while alleviating difficulties in dismissing ineffective teachers might be a legitimate end justifying changes to the Career Status Law, no evidence indicates that such a problem existed. Instead, the record is replete with affidavits from teachers and administrators who relate that the Career Status Law did not impede their ability to dismiss teachers who failed to meet the academic standards necessary properly to educate students in public schools. Instead, these affiants indicate that the Career Status Law was an important incentive in recruiting and retaining high-quality teachers. Inadequate teachers could be and were dismissed under the Career Status Law on the statutory grounds laid out in N.C.G.S. §115C–325(e)(1) (2012), including dismissal for “[i]nadequate performance,” defined in the Career Status Law as “(i) the failure to perform at a proficient level on any standard of the evaluation instrument or (ii) otherwise performing in a manner that is below standard.” Accordingly, we fail to see a legitimate public purpose for which it was necessary substantially to impair the vested contractual rights of career status teachers.

Moreover, even if we conclude that a legitimate public purpose did exist justifying such an impairment, the method adopted for alleviating that harm must be necessary and reasonable. U.S. Tr. Co. of New York v. New Jersey, 431 U.S. 1, 25 (1977). While we acknowledge that the retroactive repeal was motivated by the General Assembly’s valid concern for flexibility in dismissing low-performing teachers, we do not see how repealing career status from those for whom that right had already vested was necessary and reasonable. “[A] State is not free to impose a drastic impairment [of contract] when an evident and more moderate course would serve its purposes equally well.” Id. at 31. In the record, plaintiffs suggest several alternatives to retroactive repeal of the Career Status Law that would allow school boards more flexibility in dismissing low-quality teachers. The legislature could add additional grounds for dismissal as it did in 1973. Or the General Assembly could have refined the definition of “inadequate1026 performance” as it did in 2011. Given the possibility of such less sweeping alternatives for improving teacher quality, “the State has failed to demonstrate” why the retroactive repeal was necessary and reasonable.

Because we hold the repeal is unconstitutional in its retroactive application based on the Contract Clause of the United States Constitution, we need not address plaintiffs’ alternative claim based on Article I, Section 19 of the North Carolina Constitution. Accordingly, we conclude that the retroactive repeal of career status from those teachers who had earned that designation prior to the Career Status Repeal is unconstitutional. The vested contractual rights of those teachers were substantially impaired without adequate justification, in violation of the Contract Clause of the United States Constitution.

NOTES AND QUESTIONS

1. In what way did the North Carolina legislature alter teachers’ rights in the state? Purely as a matter of policy, were these desirable changes?

2. What is the court’s rationale for concluding that North Carolina’s old career status statutes did not, in and of themselves, give rise to a contract right? Why would a court be reluctant to recognize a contract right in a statute? Does the absence of a contract right mean that teachers lack a property right?

3. If North Carolina’s statutes did not create contract rights, from whence do teachers’ contract rights arise? With whom do teachers have a contract? How do the statutory terms in place at the time of a teacher’s contract relate to a teacher’s contract rights?

4. According to the state, why did it eliminate tenure? Why does the court reject the state’s justification for the repeal? What are justifiable reasons for impairing teachers’ contracts? Some courts have recognized budgetary shortfalls, upgrading the state’s public education system, regulating the teaching profession, and maintaining the public school system as legitimate bases for impairing teachers’ contracts. See, e.g., Baltimore Teachers Union v. Baltimore, 6 F.3d 1012 (4th Cir. 1993); Connecticut Educ. Ass’n, Inc. v. Tirozzi, 554 A.2d 1065 (1989); Texas State Teachers Ass’n v. State, 711 S.W.2d 421 (Tex. Ct. App. 1986).

5. Are there other or better ways to achieve the North Carolina legislature’s purported goal? As a matter of law, the court indicates that the chosen means of achieving the state’s goal must be reasonable and necessary. Some other courts, however, appear to be more flexible on this point than was the North Carolina Supreme Court. For instance, the Supreme Court wrote of a challenge under the U.S. Constitution that substantial impairments of contract are permissible when necessary to “accommodat[e] to the inherent police power of the State ‘to safeguard the vital interests of its people.’” Energy Reserves Grp. v. Kansas Power & Light, 459 U.S. 400, 410 (1983); see also Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 502 (1987) (“[T]he prohibition against impairing the obligation of contracts is not to be read literally.”).

6. At least two other high state courts have recently sided with North Carolina in finding that the state and federal contract clauses limit the state’s ability1027 to retroactively repeal tenure or undermine some other vested interest of teachers. Masters v. Sch. Dist. No. 1, 2015 COA 159, cert. granted sub nom. Sch. Dist. No. 1 v. Masters, 2016 WL 1104060 (Colo. Mar. 21, 2016); Madison Teachers, Inc. v. Walker, 851 N.W.2d 337, 401 (Wisc. 2014) (holding that statutory changes to teachers’ retirement benefits violated Wisconsin Contracts Clause). While the Contracts Clause might prevent a state from repealing certain tenure rights for existing teachers, does it place any limit on changing those rights for future teachers?

7. Notwithstanding the aforementioned limitations, the overall legal structure still favors the state because it is premised on ensuring discretion for the state. In those states where statutes do not clearly establish a legislative intent to establish a contract through tenure laws, a state will remain largely free, under the Contracts Clause, to alter tenure and teacher evaluation as they see fit. Other states remain free to make moderate changes so long as they do not substantially impair a vested right. For instance, these states could likely ease some burdens of due process prior to termination and make the evaluation of teachers (which could create the basis for termination) more rigorous. Only aggressive measures like the elimination of tenure or process would likely trigger a state’s need to justify its actions. Even then, states would be allowed to defend their actions as necessary to improve the quality of teaching, the accountability of teaching, and the efficiency of managing its workforce.

PROBLEM

Assume you are counsel to your local school district. A middle school principal tells you that he has a teacher whom he believes to be extremely ineffective. The teacher has all the requisite certifications, has been teaching in the district for a decade, and is generally a pleasant person. He is not exactly sure what the problem in the classroom is—ineffective classroom management, poor instruction skills, or a lack of knowledge—but he is constantly receiving complaints from parents and requests to transfer to another classroom. The principal would like to either transfer or terminate the teacher. Identify the relevant teacher tenure, dismissal, and retention statutes in your state. What options does the principal have? What plan of action would you suggest?

C. THE RIGHT TO UNIONIZE AND COLLECTIVELY BARGAIN

Teachers frequently organize themselves into bargaining units or labor unions. This allows a labor union to negotiate the more specific terms of employment left open by statutes with school boards. Collective bargaining, in some substantial form, is permitted in every state except Georgia, North Carolina, South Carolina, Texas, and Virginia. Laura McNeal, Total Recall: The Rise and Fall of Teacher Tenure,1028 30 Hofstra Lab. & Emp. L.J. 489, 492-493 (2012). The remaining states vary in the extent to which they mandate or prohibit collective bargaining on particular terms of employment. For instance, some states mandate that school districts bargain with teachers in regard to “the conditions under which teachers will receive due process [and tenure] protections…; rules governing the compensation schedule for teachers…; rules governing the process by which teachers are laid off due to economic reasons…; and rules that prescribe procedures for teacher evaluation and discipline….” William S. Koski, Teacher Collective Bargaining, Teacher Quality, and the Teacher Quality Gap: Toward a Policy Analytic Framework, 6 Harv. L. & Pol’y Rev. 67, 71-72 (2012). Other states prohibit bargaining in regard to assignment and transfer policies; granting tenure; creating school calendars; appointing principals and department heads; and withholding salary increments. Charles J. Russo, A Cautionary Tale of Collective Bargaining in Public Education: A Teacher’s Right or Tail Wagging the Dog?, 37 U. Dayton L. Rev. 317, 331-332 (2012). While there is some overlap between these two categories, the former tends to encompass generally applicable terms, conditions, and procedures of employment, whereas the latter generally encompasses the administration’s right to run the district independent of teacher interference.

While some argue that teacher unions are a primary obstacle to education reform, teachers only have the right to organize; they do not have a right to terms of their choosing. As the Supreme Court has stated, “[t]he public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so[, but] the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.” Smith v. Ark. State Highway Emps., 441 U.S. 463, 465 (1979). Thus, some would argue that the success of teacher labor unions is not due to legislative protection or favoritism, but to the political strength and unity of teachers themselves.

Regardless, collective bargaining by teachers has come under increased scrutiny in recent years and caught national attention. Most notably, in Wisconsin and Ohio, the legislatures sought to limit the scope of collective bargaining for teachers. In both states, the impetus was the fiscal impacts of teaching. In an attempt to limit costs and balance the budget during the recent economic crisis, Wisconsin and Ohio passed legislation to prevent teacher unions from negotiating health care and other benefits, although they would remain free to negotiate salary. Teachers filed various legal challenges in Wisconsin, the results of which are reprinted below. The issue never made it to the courts in Ohio because voters reversed the legislation.

Madison Teachers v. Walker

851 N.W.2d 337 (Wisc. 2014)

In March 2011, the Wisconsin Legislature passed Act 10. Act 10 significantly altered Wisconsin’s public employee labor laws. Act 10 prohibits general1029 employees from collectively bargaining on issues other than base wages, prohibits municipal employers from deducting labor organization dues from paychecks of general employees, imposes annual recertification requirements, and prohibits fair share agreements requiring non-represented general employees to make contributions to labor organizations.

In August 2011, Madison Teachers, Inc. and Public Employees Local 61 sued Governor Walker and the three commissioners of the Wisconsin Employment Relations Commission challenging several provisions of Act 10[, alleging that Act 10 violates constitutional associational rights and the right to contract].

Wisconsin has two principal labor laws, the Municipal Employment Relations Act (“MERA”), Wis. Stat. §111.70 et seq., and the State Employee Labor Relations Act (“SELRA”), Wis. Stat. §111.80 et seq., which govern employment relations and collective bargaining for public employees and labor organizations.

A. Terminology

The heart of this appeal centers on unions, collective bargaining, and the right to associate with others to collectively engage in protected First Amendment activities. These issues are always emotionally charged, especially in turbulent times, but perhaps nowhere are these topics more controversial or sensitive than in the State of Wisconsin. The importance of these questions demands clarity on what precisely is before the court, which in turn requires specificity on our part in the terminology upon which we rely.

With respect to the term “collective bargaining,” we agree with the court of appeals that the following discussion provided by an amicus effectively highlights an important definitional distinction:

Historically, in the United States the term “collective bargaining” has been used to describe two legally different activities.…The first way in which the term has been used has been to describe an activity that is an element of the right of individual citizens to associate together for the purpose of advocating regarding matters of mutual interest or concern, including matters concerning wages and employment conditions. When used in this way the term “collective bargaining” is descriptive of a collective effort and refers to an activity where the party that is the object of the advocacy, the employer, has no legal obligation to respond affirmatively to the advocacy, but may do so voluntarily.

[This type of “collective bargaining”] is a fundamental right that constitutionally is protected.

The second way in which the term “collective bargaining” has been used is to refer to a statutorily mandated relationship between an association of employees and their employer, by the terms of which an employer and its employees are obligated to negotiate, in “good faith,” for the purpose of reaching an agreement regarding the employees’ wages and conditions of employment. Such statutorily recognized “collective bargaining” is subject to legislative modification, for the purpose, at least heretofore, of protecting the employees’ fundamental right to bargain with their employer.

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[W]e use the term “collective bargaining” in the latter sense; that is, to refer to the statutorily established relationship between an association of public employees and their employer.

This definition of “collective bargaining” is consistent with the language of Act 10, which defines “collective bargaining” to mean “the performance of the mutual obligation of a municipal employer…and the representative of its municipal employees in a collective bargaining unit, to meet and confer at reasonable times, in good faith, with the intention of reaching an agreement, or to resolve questions arising under such an agreement,” with respect to wages for general employees. Wis. Stat. §111.70(1)(a). A “collective bargaining unit” is a “unit consisting of municipal employees” that has been recognized by WERC, pursuant to statute, as qualified for the purpose of collective bargaining. Stat. §111.70(1)(b).

Unlike the term “labor organization,” “union” is not defined under Act 10, though as the court of appeals noted, the parties use the term in two distinct ways. First, the term “union” may refer to what the parties in this case agree is a constitutionally protected association that individuals have the right to form and employers have the right to disregard. However, the term “union” may also refer to the “representative” of a “collective bargaining unit” in the statutorily established relationship between an association of public employees and their employer. For this reason, we follow the practice of the court of appeals and generally avoid use of the term “union.” Instead, when referring to the “exclusive certified bargaining agent” of a collective bargaining unit, as that term is understood within the statutory framework established by Act 10, we use the term “certified representative.”

Finally, we refer to a general employee that has chosen to participate in collective bargaining within the statutory framework established by Act 10 as a “represented general employee,” and in contrast, the term “non-represented general employee” to refer to a general employee who has declined to participate.

B. Associational Claims

The plaintiffs’ central argument on appeal is that the following provisions of Act 10 violate the associational rights of general employees and their certified representatives that are guaranteed under Article I, Sections 3 and 4 of the Wisconsin Constitution:

1. The provision prohibiting collective bargaining between municipal employers and the certified representatives for municipal general employee bargaining units on all subjects except base wages. Wis. Stat. §111.70(4)(mb)1.

2. The provisions limiting negotiated base wage increases to the increase in the Consumer Price Index, unless a higher increase is approved by a municipal voter referendum. Wis. Stat. §§66.0506, 111.70(4)(mb)2., and 118.245.

3. The provisions prohibiting fair share agreements that previously required all represented general employees to pay a proportionate share of the costs of collective bargaining and contract administration. Wis. Stat. §111.70(1)(f) and the third sentence of Wis. Stat. §111.70(2).

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4. The provision prohibiting municipal employers from deducting labor organization dues from the paychecks of general employees. Wis. Stat. §111.70(3g).

5. The provision requiring annual recertification elections of the representatives of all bargaining units, requiring 51% of the votes of the bargaining unit members (regardless of the number of members who vote), and requiring the commission to assess costs of such elections. Wis. Stat. §111.70(4)(d)3.

Whether the plaintiffs’ First Amendment challenge to these provisions has any merit is the lynchpin of this appeal. The core of our review is determining whether there is a cognizable First Amendment interest, which establishes the attendant level of scrutiny applied to the legislative judgment behind the requirement. If Act 10 does not infringe on the plaintiffs’ First Amendment rights, it will be upheld if any rational basis can be found for the contested provisions.

i. Freedom of Association Doctrine

The freedom of association doctrine has two analytically distinct categories: “intrinsic” freedom of association, which protects certain intimate human relationships under the Substantive Due Process component of the Fourteenth Amendment, and “instrumental” freedom of association, which protects associations necessary to effectuate First Amendment rights. The second category of association is the type of freedom of association right the plaintiffs assert has been infringed upon in this case. Regarding this form of association, the United States Supreme Court has “recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.”

iii. Limitations on Permissible Collective Bargaining Subjects

Before the enactment of Act 10, general employees were permitted under MERA to collectively bargain over a broad array of subjects, including wages, working conditions, work hours, and grievance procedures. Act 10 limits collective bargaining between municipal employers and the certified representatives of general employees to the single topic of “total base wages and excludes any other compensation….” Wis. Stat. §111.70(4)(mb)1. Moreover, Act 10 prohibits collective bargaining for base wage increases that exceed an increase in the Consumer Price Index unless approved in a municipal voter referendum. Wis. Stat. §§111.70(4)(mb)2., 66.0506, and 118.245.

The plaintiffs argue this limitation penalizes general employees who choose to be represented by a certified representative because Act 10 imposes no limitations whatsoever on the terms that non-represented general employees may negotiate with their municipal employers. Consequently, the plaintiffs contend, Act 10 unconstitutionally burdens the associational rights of general employees because they must surrender their association with a certified representative in order to negotiate anything beyond base wages.

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The plaintiffs’ argument does not withstand scrutiny. As discussed above, the plaintiffs cite to this court’s holding in Lawson v. Housing Authority of Milwaukee, 270 Wis. 269 (1955), for the general proposition that the government may not condition the receipt of a discretionary benefit on the relinquishment of a constitutionally protected right. In essence, the plaintiffs rely on Lawson as an illustration of our court applying the unconstitutional conditions doctrine. Beyond Lawson, the plaintiffs cite to numerous cases that support the same doctrinal principle: it is impermissible for the government to condition the receipt of a tangible benefit on the relinquishment of a constitutionally protected right.

We do not dispute the existence of the unconstitutional conditions doctrine or its robustness in our jurisprudence. The problem lies in the doctrine’s inapplicability to this case, and consequently, the absence of support it provides the plaintiffs’ argument.

Comparing Lawson to the facts of this case swiftly illustrates the problem. In Lawson, this court held that it was unconstitutional for the government to condition the receipt of a benefit (living in a federally aided housing project) on the relinquishment of a constitutionally protected right (the right to associate with organizations that engage in constitutionally protected speech). Here, the plaintiffs argue that it is unconstitutional for the government, through Act 10, to condition the receipt of a benefit (to participate in collective bargaining on the lone topic of base wages) on the relinquishment of a constitutionally protected right (the right to associate with a certified representative in order to collectively bargain on any subject).

The plaintiffs’ logical fallacy rests in the false analogy between the respective rights being relinquished in Lawson and in this case. Without question, in Lawson, the right being relinquished for a benefit—the right to associate with organizations that engage in constitutionally protected speech—is fundamental in nature and protected under the First Amendment. Here, however, the “right” the plaintiffs refer to—the right to associate with a certified representative in order to collectively bargain on any subject—is categorically not a constitutional right.

General employees have no constitutional right to negotiate with their municipal employer on the lone issue of base wages, let alone on any other subject. As the United States Supreme Court made clear:

[While t]he public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so[,] the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.

Smith v. Ark. State Highway Emps., 441 U.S. 463, 465 (1979) (citations omitted).

The plaintiffs have insisted at every stage of litigation in this case that they are not arguing a constitutional right exists to collectively bargain. It is evident, however, that they really are, for without such a constitutional right, their challenge fails. The plaintiffs’ reliance on Lawson hinges on the defendants1033 conditioning the receipt of a benefit on the relinquishment of a constitutional right, but as the plaintiffs acknowledge, collective bargaining—no matter the specific statutory limitations at issue—is not constitutionally protected.

Put differently, general employees are not being forced under Act 10 to choose between a tangible benefit and their constitutional right to associate. Instead, Act 10 provides a benefit to represented general employees by granting a statutory right to force their employer to negotiate over base wages, while non-represented general employees, who decline to collectively bargain, have no constitutional or statutory right whatsoever to force their employer to collectively bargain on any subject. For this reason, the plaintiffs’ argument must be rejected.

This point is vital and bears repeating: the plaintiffs’ associational rights are in no way implicated by Act 10’s modifications to Wisconsin’s collective bargaining framework. At issue in this case is the State’s implementation of an exclusive representation system for permitting public employers and public employees to negotiate certain employment terms in good faith. It is a prerogative of a state to establish workplace policy in a non-public process in consultation with only select groups—here, an organization selected by the affected workforce itself—and not others.

Not at issue in this case is the plaintiffs’ constitutional right to associate to engage in protected First Amendment activities. The plaintiffs remain free to advance any position, on any topic, either individually or in concert, through any channels that are open to the public. Represented municipal employees, non-represented municipal employees, and certified representatives lose no right or ability to associate to engage in constitutionally protected speech because their ability to do so outside the framework of statutory collective bargaining is not impaired. Act 10 merely provides general employees with a statutory mechanism to force their employer to collectively bargain; outside of this narrow context, to which the plaintiffs freely concede public employees have no constitutional right, every avenue for petitioning the government remains available.

General employees may feel inclined to collectively bargain under Act 10 in order to compel their employer to negotiate on the issue of base wages, but this creates no unconstitutional inhibition on associational freedom. The defendants are not barring the plaintiffs from joining any advocacy groups, limiting their ability to do so, or otherwise curtailing their ability to join other “like-minded individuals to associate for the purpose of expressing commonly held views….” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2288 (2012).

Thus, we conclude that the plaintiffs’ reliance on Lawson and the unconstitutional conditions doctrine to be misplaced. The limitations on permissible collective bargaining subjects imposed by Act 10 do not force general employees to choose between their constitutional right to associate and the benefit of collective bargaining. Therefore, we hold that Wis. Stat. §§111.70(4)(mb), 66.0506, and 118.245 do not violate Plaintiffs’ right to freedom of association.

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Conclusion

We hold that the plaintiffs’ associational rights argument is without merit. We reject the plaintiffs’ argument that several provisions of Act 10, which delineate the rights, obligations, and procedures of collective bargaining, somehow infringe upon general employees’ constitutional right to freedom of association. No matter the limitations or “burdens” a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The First Amendment cannot be used as a vehicle to expand the parameters of a benefit that it does not itself protect. Accordingly, we conclude that Wis. Stat. §§111.70(4)(mb), 66.0506, 118.245, 111.70(1)(f), 111.70(3g), 111.70(4)(d) 3 and the third sentence of §111.70(2) do not violate the plaintiffs’ associational rights.

NOTES AND QUESTIONS

1. The court identifies two different types of meanings for collective bargaining. What are they? What protections does each receive or not receive?

2. Why might a state mandate collective bargaining on certain terms of teachers’ employment, such as compensation, evaluations, leave, and work conditions? Why might a state prohibit bargaining on these or other terms?

3. How did Act 10 change collective bargaining in Wisconsin? What effect, if any, might these changes have on the quality of education and teaching in the state?

4. What is plaintiffs’ theory of why these changes violate their constitutional rights? Why does the court reject plaintiffs’ claim?

5. In portions of the opinion not reprinted here, the plaintiffs also alleged that the changes to collective bargaining violated equal protection by discriminating against those who join unions and that changes to the retirement system violated the Contracts Clause of the Wisconsin Constitution. The court rejected the equal protection claim, reasoning that because no fundamental right was infringed and no suspect classification involved, rational basis applied and the Act easily met it. The court, as in North Carolina, upheld the Contracts Clause claim.

6. Much of the national debate regarding teachers and teacher unions focuses on the basic question of whether teacher unions have become too powerful. Some would argue that teacher unions have so many members, are so well organized, and deliver such a crucial public service that they can dominate the political process. See generally Nicholas Dagostino, Giving the School Bully a Timeout: Protecting Urban Students from Teachers’ Unions, 63 Ala. L. Rev. 177, 181-185 (2011). More problematic, they use that power to protect their self-interests rather than those of the students they serve. Id. at 185-198. Others counter that what is good for teachers is good for students. For instance, smaller class sizes, more school funding, and more supplemental services are all good for students and would not occur without the concerted efforts of teacher unions. See generally William S. Koski, Teacher Collective Bargaining, Teacher Quality, and the1035 Teacher Quality Gap: Toward a Policy Analytic Framework, 6 Harv. L. & Pol’y Rev. 67 (2012) (identifying the varying interests of students, teachers, and other educational actors and their intersections). Which has the strongest argument? Is there a happy median between the two?

7. In 2015, the U.S. Supreme Court granted certiorari in Friedrichs v. California Teachers Association, a case challenging California’s collective bargaining statutes. In Friedrichs, plaintiffs asked the Court to overturn Abood v. Detroit Board of Education, 431 U.S. 209 (1977)—a case in which the Court previously held that although public employees who do not join a union cannot be forced to pay for or subsidize the political activities of unions, the state can force non-union employees to pay an “agency” or “fair share” fee to cover the costs of activities that still directly impact all employees—bargaining for and administering the labor contract for employees. In oral argument in 2016, a majority of the Court appeared ready to overturn the holding from Abood, but the final decision in Friedrichs was not issued until after Justice Scalia’s vacancy and the Court split 4-4. This meant that the Ninth Circuit decision upholding the California statute was affirmed. Friedrichs v. California Teachers Ass’n, 136 S. Ct. 1083 (2016) (Mem.).

D. TEACHER EVALUATIONS

Teacher evaluation has traditionally been a flexible and informal system. The extent to which teachers received an annual evaluation from their superiors varied from district to district. Where these evaluations occurred, they typically consisted of a principal observing a teacher once or twice in the classroom and then meeting with the teacher afterward to discuss the teacher’s strengths and weaknesses. Where appropriate, a principal might identify strategies for improvement and direct the teacher to implement them over some period of time. Otherwise, the principal might simply indicate that the teacher met all of the necessary competencies and move on to the next teacher or task. In other instances, observations might not follow any set schedule, but might only occur after a principal heard complaints about a teacher’s classroom. As the teacher termination cases at the beginning of this chapter suggest, this form of evaluation lent itself to subjective judgments by school officials and disagreements with teachers over those judgments. Regardless, traditional evaluation systems were not designed to specifically assess teaching quality or rank teachers based on their effectiveness. Some policymakers and reformers argued that this weak form of evaluation undermined the overall profession by creating a very low baseline for acceptable teaching and almost no incentives for high performance.

Teacher evaluations have changed drastically over the past decade. The expansion of standardized testing and the growing amounts of data collected provided a potential means by which to more precisely track individual teachers’ effects on student outcomes. Sensing this possibility and believing that it would help improve teaching effectiveness, the U.S. Department of Education used1036 competitive grant programs during the Great Recession to prompt states to implement data systems to track student achievement by classroom and from year to year. See, e.g., U.S. Dep’t of Educ., Race to the Top Program Executive Summary 2-3 (2009). That data would then be tied to teachers, and provide the means by which to evaluate them. Id.; see also Benjamin Michael Superfine, The Promises and Pitfalls of Teacher Evaluation and Accountability Reform, 17 Rich. J.L. & Pub. Int. 591, 592 (2014). Later, the Department went one step further and indicated that adopting these systems would be a condition of receiving a waiver of No Child Left Behind provisions of which states were in violation. U.S. Dep’t of Educ., ESEA Flexibility 4 (June 7, 2012). Both the competitive grants and the waiver required that states and local districts develop assessments that “measure student growth,” and based on that data, adopt “teacher and principal evaluation and support systems” that “meaningfully differentiate [teacher] performance” into at least three levels based on “student growth” data and other factors. Id. at 5-6. States and districts must use that data to “evaluate teachers and principals on a regular basis” and “inform personnel decisions.” Id. at 6.

Whether the changes were primarily the result of federal leadership or federal leadership simply reinforced local initiatives is not entirely clear, but an entirely new system of teacher evaluation now exists in most states. Between 2009 and 2012, thirty-six states and Washington D.C. passed laws that formally included student performance on standardized tests in the evaluation of teachers. Superfine, supra, at 592. Classroom observations, certifications, and other measures can also play a role, but student performance is the one factor that consistently plays a significant role across states.

Tennessee, for instance, required that teachers be annually evaluated on two bases—student test scores and frequent principal observations. Tenn. Code Ann. §49-1-302 (20)(d)(2) (2016). Based on those two factors, administrators are to rank each teacher in one of four tiers of effectiveness. Id. The exact weight the performance data must carry in teacher evaluations varies from state to state, with some states requiring it count for 50 percent or more and others only requiring that it be significant. See Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 Calif. L. Rev. 75, 93 (2016). Once those evaluations are complete, states also mandate consequences. In Tennessee, to receive tenure, teachers must be in the top two tiers of effectiveness two of their first five years of teaching. After that, a teacher can still lose tenure after receiving two consecutive years of below expectations evaluations. Some states even mandate dismissal upon a certain number of low evaluations, while others afford the district discretion to terminate the teacher. Bruce D. Baker et al., The Legal Consequences of Mandating High Stakes Decisions Based on Low Quality Information: Teacher Evaluation in the Race-to-the-Top Era, 21(5) Educ. Pol’y Analysis Archives (2013).

Teachers have challenged these new evaluation systems on a number of grounds. The most significant, however, is based on the notion that the evaluation systems themselves produce arbitrary results and are so fundamentally unfair that they violate substantive due process. To appreciate the claims, one first needs a basic understanding of how students’ standardized test scores are used to evaluate teachers. States generally rely on one of two statistical models. The first is called a “value-added model” (VAM). This model attempts to1037 estimate how a group of students would perform if all things but the teacher were equal. Based on that estimate, value-added models measure whether individual teachers help students achieve more or less than expected. This serves as the basis to compare teachers to each other and determine which teachers “add value” to learning outcomes. The second model is a “student growth percentile model” (SDP). They are similar in theory to value-added models, but student growth percentile models are distinct in their calculations. Rather than rely on estimates, student growth percentile models measure the actual growth that students demonstrate on standardized tests from one school year to the next. That growth is then compared to the growth of students in other classrooms to rank the growth of a teacher’s students in terms of percentiles. Student growth percentile models, however, do not control for student demographics and other relevant school level factors. In this respect, they are no more than raw data and not well suited to assessing a teacher’s effectiveness.

Scholars have increasingly identified technical flaws in both models. First is the problem of year-to-year changes. Teachers’ scores on these models routinely change significantly from year to year, are often revised after the fact based on subsequent year data, and may not include data sufficiently disaggregated by student demographics and variables. These year-to-year changes strongly suggest the model calculations for any given individual year are invalid. Second is the problem of arbitrary cut-off scores. States have not validated the cut-off scores embedded in the models, and it is not clear that they can. Being in the top or bottom percentile of teachers, for instance, has not been measured against actual performance in the classroom. Instead, states have arbitrarily determined that being in some statistical percentile means that a teacher is effective or ineffective. Third is the problem of attributing student learning to particular teachers. A standardized history test, for instance, will also test reading comprehension. Thus, the history teacher will be scored based not just on what he or she has taught, but on the quality of instruction the student received in other classes. Moreover, even as to history, students’ learning and interests outside the classroom will affect their performance. Fourth, even if the forgoing issues could be resolved, the statistical models fail to inform the most basic question regarding teaching effectiveness: what the teacher is doing well (or not). VAM and SDP outputs are no more than data points. They do not tell administrators why a teacher is ineffective. Thus, they offer no meaningful notice to teachers of what they are doing wrong, nor an opportunity to correct it.

As a result of these problems, teachers have challenged the new evaluation systems in several states, including Tennessee, Louisiana, Texas, New York, Florida, and New Mexico. Teacher Evaluation Heads to the Courts, Educ. Week, Oct. 7, 2015; see also LaJuana Davis, Huntsville, AL Education Association Sues District for Withholding List of “Ineffective” Teachers, Educ. Law Prof Blog (Apr. 28, 2016). The Eleventh Circuit was the first high court to offer an opinion on the issues. As you will see, its analysis was relatively perfunctory in upholding Florida’s evaluation system. Whether the opinion will shape the outcome in other states remains to be seen, but at least one trial court has already rejected its reasoning. Stewart v. New Mexico Public Educ. Dep’t, No. D-101-DV-2015-1038 00409, Findings and Conclusions and Memorandum Order Granting Plaintiff’s Motion for Preliminary Injunction (First Judicial District Court, Dec. 2, 2015).

Cook v. Bennett

792 F.3d 1294 (11th Cir. 2015)

Florida public school teachers challenged Florida’s Student Success Act, as well as the Florida State Board of Education’s and three school districts’ implementation of the Act, alleging that the Act resulted in teacher evaluation policies that violated the teachers’ rights to due process and equal protection under the Fourteenth Amendment. Because we agree with the district court that the policies pass rational basis review, we affirm.

In 2011, the Florida legislature enacted the Student Success Act, establishing new requirements for public school teachers’ performance evaluations. Fla. Stat. §012.34 (2011). The Act provided that “[a]t least 50 percent of a performance evaluation must be based upon data and indicators of student learning growth assessed annually by statewide assessments.” Id. §1012.34(3)(a)(1). It tasked the Florida Commissioner of Education with approving “a formula to measure individual student learning growth on the Florida Comprehensive Assessment Test (FCAT).” Id. §1012.34(7)(a).

The Commissioner developed a formula known as the FCAT value-added model (“FCAT VAM”), which is based on students’ FCAT scores for English and mathematics and accounts for a host of predictor variables (such as a student’s prior test scores, attendance rate, and disability status). The FCAT VAM outputs a “teacher component,” which measures an individual teacher’s effect on student scores, and a “common school component,” which measures the potential impact of factors that are part of a school’s environment, such as the principal or the neighborhood. A teacher’s final evaluation score is calculated by adding the FCAT VAM teacher component score with 50 percent of the common school component score.

Students take the English FCAT exam in grades 3 through 10 and the mathematics FCAT exam in grades 3 through 8. The FCAT VAM was designed to provide evaluation scores for teachers who teach FCAT courses and whose students have FCAT scores from at least two years: the earlier score serves as a baseline of the student’s achievement, and the more recent score is used to evaluate his or her current teacher’s performance. Thus, the model only works as designed in evaluating teachers of English in grades 4 through 10 and math in grades 4 through 8. The district court referred to these teachers as “Type A” teachers, and we will adopt its nomenclature for the purposes of this opinion. The rest of Florida’s public school teachers fall into two groups. “Type B” teachers teach students in grades 4 through 10, but in subjects other than English or math. A Type B teacher’s students have at least two FCAT scores that can be used in the FCAT VAM, but the teacher does not teach the subjects in which the scores were received. “Type C” teachers teach students who either (1) are in grades below 4 or above 10 or (2) do not take standardized tests. A Type C1039 teacher’s students do not have at least two FCAT scores that can be used in the FCAT VAM.

The Student Success Act required schools to adopt the FCAT VAM for purposes of evaluating Type A teachers beginning with the 2011–12 school year. For Type B and C teachers, the Act instructed school districts to select an “equally appropriate formula for measuring student learning growth.” However, most districts—including the three school district defendants here—lacked the resources necessary to develop alternative assessments (such as district-wide testing in non-FCAT subjects) or the statistical models (equivalent to the FCAT VAM) necessary to derive student growth measurements from alternative assessment data. In the absence of an “equally appropriate formula,” the Act required school districts to evaluate Type B teachers using “the growth in learning of the classroom teacher’s students on statewide assessments.” In practice, Type B teachers’ evaluations were based on FCAT VAM scores derived from their students’ FCAT scores in English and math.

For Type C teachers, in the absence of a formula, school districts had to evaluate them using “measurable learning targets…established based upon the goals of the school improvement plan and approved by the school principal.” In practice, Type C teachers’ evaluations were based on school-wide FCAT VAM scores derived from the FCAT scores of students whom the Type C teachers did not teach. The Florida State Board of Education approved the districts’ evaluation procedures and assisted the districts in calculating FCAT VAM scores for Type B and C teachers.

Plaintiffs challenged, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the constitutionality of the Student Success Act and the district and state defendants’ implementation of the Act.

We begin by analyzing the plaintiffs’ substantive due process claim. For such claims, we apply the rational basis standard when a challenged law infringes upon a non-fundamental right, as is the case here. Under rational basis review, the school district’s evaluation policies must be rationally related to a legitimate governmental purpose. We will uphold a law if “there is any reasonably conceivable state of facts that could provide a rational basis for [it].” “[A] state has no obligation to produce evidence to sustain the rationality of a statutory classification.…[T]he burden is on the one attacking the law to negate every conceivable basis that might support it, even if that basis has no foundation in the record.” A law need not be sensible to pass rational basis review; rather, it “may be based on rational speculation unsupported by evidence or empirical data.” A statute survives rational basis review even if it “seems unwise…or if the rationale for it seems tenuous.”

The plaintiffs argue that the evaluation policies fail rational basis review because the policies arbitrarily and illogically evaluate teachers based on test scores either of students or in subjects they did not teach. The plaintiffs claim that the evaluation policies are not rationally related to, and in fact run counter to, the purpose for which the FCAT VAM was developed—that is, to attribute student learning growth to specific teachers by controlling for variables such as student demographics or school-wide factors like a principal.

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Certainly the FCAT VAM was not designed to evaluate Type B and C teachers, but the defendants do not justify the evaluation policies in relation to the FCAT VAM’s purpose. Rather, they argue that the policies are rationally related to the purpose behind the Student Success Act itself, which is to “increas[e] student academic performance by improving the quality of instructional, administrative, and supervisory services in the public schools of the state.” Fla. Stat. §1012.34(1)(a). The plaintiffs have failed to carry their burden to refute this justification for the law. While the FCAT VAM may not be the best method—or may even be a poor one—for achieving this goal, it is still rational to think that the challenged evaluation procedures would advance the government’s stated purpose.

As the plaintiffs conceded at oral argument, Florida officials could have reasonably believed that (1) a teacher can improve student performance through his or her presence in a school and (2) the FCAT VAM can measure those school-wide performance improvements, even if the model was not designed to do so. For example, Type B teachers may have a positive impact on their students that bleeds over into the students’ work in other classes, including those measured by the FCAT. Type C teachers may have a positive impact on the learning environment of the school overall. The FCAT VAM can capture such impacts either by measuring the growth of a Type B teacher’s students or by measuring the growth of a school overall. It is also reasonable to think that tying teacher evaluation scores and teacher compensation to FCAT VAM scores can incentivize teachers to pursue more school-wide improvements, which would in turn improve student academic performance. Thus, we agree with the district court that the policies pass rational basis review. Without a doubt, the evaluation scheme has led to some unfair results for Type B and C teachers, but “[t]he Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Vance v. Bradley, 440 U.S. 93, 97 (1979) (footnote omitted).

We reach the same result as to the plaintiffs’ equal protection claim. Rational basis review also applies to equal protection challenges concerned with a distinction between two groups drawn without reference to a protected class, as is the case here. On rational basis review, “[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Id. Rational basis review in the context of equal protection is essentially equivalent to rational basis review in the context of due process.

As we held above, the challenged evaluation procedures were rationally related to the purpose of improving student academic performance. Accordingly, the plaintiffs’ equal protection claim also fails. The plaintiffs argue that the decisions in Debra P. v. Turlington, 644 F.2d 397 (5th Cir.1981), and Armstead v. Starkville Mun. Separate Sch. Dist., 461 F.2d 276 (5th Cir.1972), dictate the opposite result. Turlington concerned Florida’s creation of a new prerequisite for graduation, requiring students to get a minimum score on a state-created assessment test. The Fifth Circuit held that the test was not rationally related to a1041 legitimate state interest insofar as it tested material not taught to the students. The court remanded the case for further development of the record as to whether the test covered untaught material.

Armstead struck down a Mississippi school’s use of the Graduate Record Examination (“GRE”) as an employment qualification for teachers. Both prospective and incumbent teachers had to achieve a certain minimum score on the GRE in order to gain employment or continue teaching at the school. It was undisputed in the case that the GRE could not predict the future effectiveness of teachers. The court held that the GRE had “no reasonable function in the teacher selection process.” Armstead, 461 F.2d at 280.

Armstead and Turlington are distinguishable from the case before us. Both cases involved tests that could not further a legitimate state objective. A test based on information never taught to a student cannot assess whether a student is ready for graduation from high school. Similarly, the GRE (which measures vocabulary, reading comprehension, and mathematical reasoning to determine an individual’s capacity for advanced study) cannot predict how effective a teacher will be in the classroom. In this case, however, the plaintiffs have conceded that the FCAT VAM is—or at least a rational policymaker could believe it is—capable of measuring some marginal impact that teachers can have on their own students or on the overall school environment. Thus, the FCAT VAM is not analogous to the tests at issue in Armstead and Turlington, and it was not irrational for the districts to use the model for teacher evaluations.

Because the state and district defendants could have rationally believed that the challenged evaluation policies would improve students’ academic achievement, we affirm the district court’s entry of summary judgment in the defendants’ favor.

NOTES AND QUESTIONS

1. How does Florida’s teacher evaluation system work? Are there any practical problems with it? How accurate or inaccurate is it likely to be in assessing teaching effectiveness? Might the evaluation system be more accurate for some teachers and less for others? If so, is the system reliable?

2. No system is perfect and, thus, the appropriate inquiry may be how accurate the system needs to be for districts to fairly rely upon it. What level of accuracy in the evaluation system does the court require? Do you agree that this level of accuracy is sufficient to render it constitutionally rational? If the system produces random results, can it be a rational system?

3. The Eleventh Circuit’s outcome appears to be dictated by its notion that rational basis review requires an extremely deferential approach to the testing and evaluation system. According to the Eleventh Circuit, so long as the state has a legitimate goal and the system furthers it in some way, the system is constitutional. While there are few cases directly on point, in similar contexts, courts have asked preliminary questions about the tests themselves, reasoning that if the test to be administered is not technically valid, it is impermissible. See,1042 e.g., Debra P. v. Turlington, 644 F.2d 397, 406 (5th Cir. 1981) (focusing heavily on the validity of a high school graduation and writing that “[i]f the test is not fair, it cannot be said to be rationally related to a state interest”); see also U.S. Dep’t of Educ. Off. for Civil Rights, The Use of Tests as Part of High-Stakes Decision-Making for Students (2000). This analysis proceeds from the notion that due process includes both substantive and procedural protections. While the basic rule of substantive due process might only require that the evaluation system marginally further some legitimate goal, as a matter of fairness and procedure, the system must also offer teachers meaningful notice and a fair opportunity to respond. Technically invalid tests do neither, as teachers may not know what their actual deficiencies are, nor how to correct them. See generally Bruce D. Baker et al., The Legal Consequences of Mandating High Stakes Decisions Based on Low Quality Information: Teacher Evaluation in the Race-to-the-Top Era, 21 Educ. Pol’y Analysis Archives (2013); Preston C. Green III et al., The Legal and Policy Implications of Value-Added Teacher Assessment Policies, 2012 B.Y.U. Educ. & L.J. 1 (2012).

4. Notwithstanding its deferential review, does the court sufficiently justify its conclusion that the evaluation system furthers the state’s goals? How is the evaluation of teachers on material that they did not teach reasonably related to furthering the state’s goal?

5. The trial court in New Mexico ex rel. Stewart v. N.M. Public Education Department, No. D-101-CV-2015-00409 (N.M. Dec. 2, 2015), enjoined New Mexico’s value-added model of teacher evaluation. Although the state is free to continue to use its model for diagnostic or other purposes, it cannot use it for high-stakes purposes of terminating teachers or placing teachers on notice of future termination. Nor can it use the model to revoke licenses or deny raises. Throughout its opinion, the court found various aspects of the evaluation system that made it generally unreliable. It emphasized, for instance, the random variations in the model’s results for teachers from district to district and year to year. As one superintendent admitted, he could not determine why a teacher was rated as ineffective; he just knew that was her rating.

Similarly, a trial court in New York struck down the state’s value-added system. Based on submissions from leading education experts, the court found:

that petitioner has met her high burden and established that petitioner’s growth score and rating for school year 2013-2014 are arbitrary and capricious.

The Court’s conclusion is founded upon: (1) the convincing and detailed evidence of VAM bias against teachers at both ends of the spectrum (e.g. those with high-performing students or those with low-performing students); (2) the disproportionate effect of petitioner’s small class size and relatively large percentage of high-performing students; (3) the functional inability of high-performing students to demonstrate growth akin to lower-performing students; (4) the wholly unexplained swing in petitioner’s growth score from 14 to 1, despite the presence of statistically similar scoring students in her respective classes; and, most tellingly, (5) the strict imposition of rating constraints in the form of a “bell curve” that places teachers in four categories via pre-determined percentages regardless of whether the performance of students dramatically rose or dramatically fell from the previous year.

Lederman v. King, No. 5443-14, Decision, Order and Judgment (State of New York Supreme Court, May 10, 2016).

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E. THE CONSTITUTIONAL CHALLENGE TO TEACHER TENURE

As prior sections imply, many education reformers are convinced that eliminating teacher tenure is a necessary first step to any meaningful improvement to teaching quality because tenure locks in the status quo. But as the prior sections also demonstrate, certain federal and state constitutional principles place limits on states’ abilities to change or eliminate tenure. Equally important, the political strength of teachers and their unions would often serve to block these changes in the first instance.

Acknowledging these constraints, reformers have joined with plaintiffs to pursue the same ends through other means, developing the theory that tenure and the retention of ineffective teachers violates students’ constitutional right to education. As explored in Chapter 3, a majority of state supreme courts have used state constitutional rights to equalize school funding. If unequal funding violates the constitutional right to education, reformers reason that so too might ineffective teaching caused by tenure.

The first case, Vergara v. State, was filed in California in 2012. The plaintiffs alleged that California statutes grant teachers tenure far too easily and “force school administrators to keep teachers in the classroom long after they have demonstrated themselves to be grossly ineffective.” First Amended Complaint for Declaratory & Injunctive Relief at 1, Vergara v. State, No. BC484642 (Cal. Super. Ct. Aug. 15, 2012). This, plaintiffs reasoned, violates the California Constitution’s Equal Protection Clause, under which education is a fundamental right. In 2014, the trial court in Vergara became the first to strike down a tenure statute as unconstitutional. Vergara v. State, No. BC484642, 2014 WL 6478415 (Cal. Super. Ct. Aug. 27, 2014). With that result, it triggered similar litigation in other states and what some call a “War on Teacher Tenure.” Haley Sweetland Edwards, The War on Teacher Tenure, Time, Oct. 30, 2014. That “war,” however, suffered a major setback when the California appellate court reversed the decision in Vergara.

Vergara v. State

246 Cal. App. 4th 619, 202 Cal. Rptr. 3d 262 (2016)

[N]ine students sued the State of California and several state officials, seeking a court order declaring various provisions of California’s Education Code unconstitutional. According to plaintiffs, these provisions, which govern how K-12 public school teachers obtain tenure, how they are dismissed, and how they are laid off on the basis of seniority, violate the California Constitution’s guarantee that all citizens enjoy the “equal protection of the laws.” The matter went to trial. After hearing eight weeks of evidence, the trial court issued a 16-page tentative decision, finding the challenged statutes unconstitutional under the equal protection clause of the California Constitution.

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In its decision, the trial court noted that in Serrano v. Priest, 5 Cal.3d 584 (1971) (Serrano I) and Serrano v. Priest, 18 Cal.3d 728 (1976) (Serrano II), our Supreme Court held education to be a fundamental interest and struck down the then-operative school financing system for violating the equal protection provisions of the California Constitution. The trial court also discussed Butt, in which the Supreme Court held that students in the Richmond Unified School District would be deprived of their right to basic educational equality if the district closed its schools six weeks early due to a budgetary shortfall. In light of this legal authority, the trial court characterized its task as determining whether the challenged statutes “cause the potential and/or unreasonable exposure of grossly ineffective teachers to all California students in general and to minority and/or low income students in particular, in violation of the equal protection clause of the California Constitution.” Answering this question affirmatively, the court determined that plaintiffs “met their burden of proof on all issues presented.”

The trial court found that competent teachers are a critical component of the success of a child’s educational experience, and that grossly ineffective teachers substantially undermine the ability of a child to succeed in school. It further found that evidence presented at trial on the effects of grossly ineffective teachers was compelling and “shocks the conscience.” The court wrote there was “no dispute” that a significant number of grossly ineffective teachers are active in California classrooms and, based on the testimony of defendants’ expert Berliner, estimated this number to comprise 1 to 3 percent of California teachers—or approximately 2,750 to 8,250 teachers. Based on its determination that the challenged statutes (i) impose a “real and appreciable impact” on students’ fundamental rights to equality of education, and (ii) “impose a disproportionate burden on poor and minority students,” the court employed a “strict scrutiny” examination of the challenged statutes.

With respect to the tenure statute, the trial court found “extensive evidence” that the probationary period “does not provide nearly enough time for an informed decision to be made regarding the decision of tenure.” As a result, “teachers are being reelected who would not have been had more time been provided for the process,” and students “are unnecessarily, and for no legally cognizable reason (let alone a compelling one), disadvantaged by the current [tenure statute].” The court determined that defendants had not met their burden under the strict scrutiny standard and declared the tenure statute unconstitutional.

Turning to the dismissal statutes, the trial court found that, based on the evidence presented, the dismissal process’s time and costs cause districts to be very reluctant to commence dismissal procedures. Due to this situation, “grossly ineffective teachers are being left in the classroom because school officials do not wish to go through the time and expense to investigate and prosecute these cases.” The court further found that due process for tenured teachers is a legitimate concern, but the dismissal statutes “present the issue of über due process.” In concluding that defendants failed to meet their burden under the strict scrutiny standard, the court wrote: “There is no question that teachers should be afforded reasonable due process when their dismissals are sought. However, based on the evidence before this Court, it finds the current system…to be1045 so complex, time consuming and expensive as to make an effective, efficient yet fair dismissal of a grossly ineffective teacher illusory.”

Regarding the reduction-in-force statute, the trial court noted it contained no exception based on teacher effectiveness. Therefore, the court found, because the “last-hired” teacher is statutorily mandated to be “first fired” when layoffs occur, students are separated from competent junior teachers while incompetent teachers with seniority remain in the classroom. “The result is classroom disruption on two fronts, a lose-lose situation.” Again, the court found that defendants did not carry their burden under the strict scrutiny test, and deemed the reduction-in-force statute unconstitutional.

Finally, the trial court determined that substantial evidence showed the challenged statutes disproportionately affect poor and/or minority students. Citing to the 2007 [California Department of Education (CDE)] report, it found that students attending high-poverty, low-performing schools were far more likely than wealthier peers to attend schools with a disproportionately high number of underqualified, inexperienced, and ineffective teachers. The court further found that the “dance of the lemons”—where poorly performing teachers are transferred from school to school—was caused by the lack of effective dismissal statutes and the reduction-in-force statute, and that it affected high-poverty and minority students disproportionately.

[On these grounds, t]he trial court ordered the statutes enjoined, and stayed all injunctions pending appellate review.

Discussion

As explained above, plaintiffs contend that the challenged statutes create an oversupply of grossly ineffective teachers because (i) the tenure statute’s probationary period is too short, preventing the identification of grossly ineffective teachers before the mandated deadline for reelection; (ii) when grossly ineffective tenured teachers are identified, it is functionally impossible to terminate them under the overly burdensome and complicated dismissal statutes; and (iii) when reductions-in-force are required, the statute requires the termination of junior, competent teachers while more senior, grossly ineffective teachers keep their jobs only because they have seniority. Plaintiffs argued, and the trial court agreed, that two distinct classes of students—Group 1 (an “unlucky subset” of students within the population of students at large) and Group 2 (poor and minority students)—were denied equal protection because the challenged statutes led members of these groups to be assigned to grossly ineffective teachers.

A. Group 1: No Identifiable Class Under Equal Protection Analysis

Plaintiffs describe Group 1 as an “unlucky subset” of the general student population that is denied the fundamental right to basic educational equality because students within this subset are assigned to grossly ineffective teachers. According to plaintiffs, the students comprising Group 1 are, in all pertinent respects, similar to the population of students at large, except for their exposure1046 to grossly ineffective teachers. In the judgment, the trial court found that the challenged statutes are unconstitutional because they lead students within Group 1 to be assigned to grossly ineffective teachers and thereby have a real and appreciable impact on these students’ fundamental right of education.

The trial court’s judgment, however, omits analysis of a key preliminary question: Is the unlucky subset of students comprising Group 1 a sufficiently identifiable group for purposes of an equal protection action? “In equal protection analysis, the threshold question is whether the legislation under attack somehow discriminates against an identifiable class of persons. Only then do the courts ask the further question of whether this identifiable group is a suspect class or is being denied some fundamental interest, thus requiring the discrimination to be subjected to close scrutiny.”

Here, the unlucky subset is not an identifiable class of persons sufficient to maintain an equal protection challenge. Although a group need not be specifically identified in a statute to claim an equal protection violation, group members must have some pertinent common characteristic other than the fact that they are assertedly harmed by a statute.

The defining characteristic of the Group 1 students, who are allegedly harmed by being assigned to grossly ineffective teachers, is that they are assigned to grossly ineffective teachers. Such a circular premise is an insufficient basis for a proper equal protection claim. To avoid this circularity, a group must be identifiable by a shared trait other than the violation of a fundamental right.

Plaintiffs argue that a class need only be identifiable when the asserted equal protection violation stems from the differential treatment of a suspect class, rather than the infringement of a fundamental right. For support, they cite Moreno v. Draper (1999). But Moreno does not support their argument. The statute at issue in Moreno, which the plaintiff claimed infringed the fundamental right to raise one’s children, “create[d] two classes of parents paying child support—those with children receiving public assistance and those with children not receiving public assistance.” Indeed, every equal protection case based on the infringement of a fundamental right has involved a class identified by some characteristic other than asserted harm. In Butt, the classes were the students of the Richmond Unified School District, who would be harmed by the closing of schools, and the students outside that district. In the Serrano cases, the impairment of the fundamental right to education was suffered by students living in relatively poor school districts, which had less taxable wealth and therefore, under the then-existent financing systems, lower levels of educational expenditures. In other words, students were impacted by the system based on their residency.

In contrast, the unlucky subset constituting Group 1 is definable only by the characteristic that group members have assertedly suffered constitutional harm. What is more, the statutes do not assist plaintiffs with their definitional deficiency because they do not specify which students will be the “unlucky ones.” In Gould, our Supreme Court held that a system that assigned ballot position randomly would not violate equal protection because, since all candidates had an equal chance of obtaining the top position, it would not “continually work a disadvantage upon a fixed class of candidates.” The claimed effect on students1047 here is analogous. Under plaintiffs’ Group 1 theory, an unlucky subset of students will inevitably be assigned to grossly ineffective teachers. The chance that this will happen to any individual student, however, is random, as the challenged statutes do not make any one student more likely to be assigned to a grossly ineffective teacher than any other student. Thus, the unlucky subset is nothing more than a random assortment of students. Moreover, because (according to the trial court’s findings) approximately 1 to 3 percent of California teachers are grossly ineffective, a student in the unlucky subset one year will likely not be the next year, meaning that the group is subject to constant flux. The claimed unlucky subset, therefore, is not an identifiable class sufficient to maintain an equal protection claim, and the judgment, insofar as it is based on plaintiffs’ Group 1 theory, cannot be affirmed.

B. Group 2: No Inevitable Constitutional Violation

The trial court also found that poor and minority students (Group 2) suffered disproportionate harm from being assigned to grossly ineffective teachers. Race is generally considered a “suspect classification” under equal protection analysis. In the context of education, under California law, wealth is considered a suspect classification as well. Based on its finding of disproportionate harm, the trial court determined that strict scrutiny of the challenged statutes was appropriate. In making this determination, however, the trial court bypassed an initial question of the required analysis: Did the challenged statutes cause low-income and minority students to be disproportionately assigned to grossly ineffective teachers?

A statute is facially unconstitutional when the constitutional violation flows “inevitably” from the statute, not the actions of the people implementing it. This can occur when (1) the text of the statute mandates the constitutional violation (see Serrano I, 5 Cal.3d 584, 603 [noting how the unequal “school funding scheme is mandated in every detail by the California Constitution and statutes”]); or (2) the constitutional violation, while not mandated by the statute’s text, “inevitably” flows from the statute regardless of the actions of those administering it (see Serrano II, 18 Cal.3d 728, 768-69 [noting how, in light of a property tax–based school funding scheme, a poor school district “cannot freely choose to tax itself into an excellence…”].

It is clear that the challenged statutes here, by only their text, do not inevitably cause poor and minority students to receive an unequal, deficient education. With respect to students, the challenged statutes do not differentiate by any distinguishing characteristic, including race or wealth.

Plaintiffs still could have demonstrated a facial equal protection violation, however, by showing that the challenged statutes, regardless of how they are implemented, inevitably cause poor and minority students to be provided with an education that is not “basically equivalent to” their more affluent and/or white peers. It is possible, though not certain, that plaintiffs could have made such a showing by proving that any implementation of the statutes inevitably resulted in the consequential assignment of disproportionately high numbers of1048 grossly inefficient teachers to schools predominantly serving low-income and minority students.

No such showing was made. Instead, the evidence at trial firmly demonstrated that staffing decisions, including teacher assignments, are made by administrators, and that the process is guided by teacher preference, district policies, and collective bargaining agreements. This evidence is consistent with the process set forth in the Education Code, which grants school district superintendents the power to assign teachers to specific schools or to transfer teachers between schools within a district, subject to conditions imposed by collective bargaining agreements, district policies, and by statute. Further, the evidence at trial showed what the text of the challenged statutes makes clear—that the challenged statutes do not in any way instruct administrators regarding which teachers to assign to which schools. Thus, it is administrative decisions (in conjunction with other factors), and not the challenged statutes, that determine where teachers are assigned throughout a district.

The trial court’s conclusions do not support a contrary finding. In determining that the challenged statutes disproportionately affect Group 2 students, the trial court (i) cited to a CDE report stating that students attending high-poverty, low-performing schools are far more likely than wealthier peers to attend schools with a high number of underqualified, inexperienced, and ineffective teachers, and (ii) found that the “dance of the lemons” is caused by the lack of effective dismissal statutes and the reduction-in-force statute, and that it affects high-poverty and minority students disproportionately. Neither of these findings supports a conclusion that the challenged statutes determine where grossly ineffective teachers work. The CDE report relied on by the court does not suggest that the challenged statutes cause disparities in the assignment of poor or minority students to grossly ineffective teachers. Instead, it repeatedly documents the reason for higher concentrations of ineffective teachers in schools serving such students—the “counterproductive hiring and placement practices” of local administrators. Nor did the trial evidence show the “dance of the lemons” is inevitably caused by the statutes. Instead, as described at trial, the dance of the lemons is a process driven by local administrators. According to trial testimony, some principals rid their schools of highly ineffective teachers by transferring them to other schools, often to low-income schools. This phenomenon is extremely troubling and should not be allowed to occur, but it does not inevitably flow from the challenged statutes, and therefore cannot provide the basis for a facial challenge to the statutes.

Plaintiffs contend that the testimony of their expert witnesses supports their position that the challenged statutes cause grossly ineffective teachers to be disproportionately assigned to schools with large low-income and minority populations. These witnesses opined that grossly ineffective teachers “tend to” accumulate in schools serving minority students, and that the challenged statutes “could” be a cause. We are not required to defer to expert opinion regarding the ultimate issue in a case, particularly when the issue is a predominantly legal mixed question of law and fact. In any event, these opinions do not sustain plaintiffs’ burden. The first opinion does not explain why grossly ineffective teachers “tend to” accumulate at certain schools, and the second opinion1049 only indicates the statutes “could be” a cause, not that they are or, more importantly, inevitably are.

Nor have plaintiffs demonstrated that the challenged statutes inevitably lead to greater disruption at schools serving poor and minority students during reductions-in-force. Plaintiffs presented evidence that certain schools serving these students have higher numbers of inexperienced teachers and go through more layoffs than other schools. Witnesses for plaintiffs testified that this “constant churn” of staff is destabilizing. Again, while plaintiffs have identified a troubling problem, they have not properly targeted the cause. The challenged statutes do not inevitably lead to the assignment of more inexperienced teachers to schools serving poor and minority children. Rather, assignments are made by administrators and are heavily influenced by teacher preference and collective bargaining agreements.

It is possible that the challenged statutes—in the way they pertain to teacher tenure and seniority—lead to a higher number of grossly ineffective teachers being in the educational system than a hypothetical alternative statutory scheme would. This possibility may present a problem with policy, but it does not, in itself, give rise to an equal protection violation, which requires a classification affecting similarly situated groups in an unequal manner.

Assuming that poor and minority students encounter more grossly ineffective teachers and that this impacts their constitutional right to “basic educational equality,” the constitutional infringement is the product of staffing decisions, not the challenged statutes. Even if the statutes were struck down, the harm at issue—the disproportionate assignment of inferior teachers to poor and minority students—could still occur as before. (Any system will have some teachers who are not as effective as others.) And, since the challenged statutes, on their face and in effect, do not dictate where teachers are assigned, declaring the statutes facially unconstitutional would not prevent administrators from assigning the worst teachers to schools serving poor and minority students.

In sum, the evidence presented at trial highlighted likely drawbacks to the current tenure, dismissal, and layoff statutes, but it did not demonstrate a facial constitutional violation. The evidence also revealed deplorable staffing decisions being made by some local administrators that have a deleterious impact on poor and minority students in California’s public schools. The evidence did not show that the challenged statutes inevitably cause this impact. Plaintiffs elected not to target local administrative decisions and instead opted to challenge the statutes themselves. This was a heavy burden and one plaintiffs did not carry. The trial court’s judgment declaring the statutes unconstitutional, therefore, cannot be affirmed.

NOTES AND QUESTIONS

1. Putting aside the evidence in this case, do plaintiffs raise a theoretically valid claim that tenure violates the fundamental or constitutional right to education? How does that claim compare to those plaintiffs’ assertions regarding1050 funding and other resources and opportunities in Chapter 3? Is there any important distinction between the tenure claim and those others?

2. Is this challenge more akin to the adequacy and equity challenges asserted in Chapter 3 or closer to an education malpractice tort claim, whereby individuals seek the ability to remove particular teachers from their jobs? Courts have traditionally rejected education malpractice claims due to actual and proximate cause problems and the absence of objective standards for evaluation of teachers, but relying on much of the same type of data presented in Vergara, Ethan Hutt and Aaron Tang argue that courts could now recognize the claim. The New Education Malpractice Litigation, 99 Va. L. Rev. 419, 421 (2013). Do you agree?

3. The court allows that some students—potentially even a substantial number—may be saddled with grossly ineffective teachers. Why does the court, nonetheless, conclude that plaintiffs’ claim fails? The court’s answer to this question also helps resolve another issue initially raised in Chapter 3 regarding whether strict scrutiny of education as a fundamental right requires the state to perfect its education system and eliminate all inequalities. Here, the court indicates that random variations in educational opportunity alone do not give rise to constitutional claim. Is the court’s explanation on this point compelling?

4. Even if plaintiffs could identify a discrete class of students who are saddled with grossly ineffective teachers, the court finds that their challenge to tenure and seniority statutes would fail for another fundamental reason. What is that reason?

5. What causes other than tenure might explain the retention of ineffective teachers or their disproportionate numbers at predominantly poor and minority schools? Which causes are likely the strongest?

6. The challenge to tenure and seniority arguably seeks to dictate the terms of employment of teachers rather than just ensure equal access to quality teachers. If so, this challenge would seek to set or dictate education policy at a deeper level than the challenges raised in Chapter 3. Does this present any policy or separation of powers concerns?

7. Just weeks after the trial court decision in Vergara, two different challenges to teacher tenure were filed in New York (and thereafter consolidated). Al Baker, Lawsuit Challenges New York’s Teacher Tenure Laws, N.Y. Times, July 4, 2014, at A14. Plaintiffs survived the state’s initial motion to dismiss. Davids v. State, No. 10115/14 (N.Y. Sup. Ct. Mar. 12, 2014), http://lawprofessors.typepad.com/education_law/2015/03/new-york-trial-court-permits-constitutional-challenge-to-teacher-tenure-proceed.html (order denying motions to dismiss). Another tenure challenge was filed in Minnesota in 2016. Derek Black, New Lawsuit Challenging Teacher Tenure Ignores Basic Facts About Teaching Quality and Segregation, Educ. Law Prof Blog (Apr. 14, 2016); see also M. Rebecca Cooper, Alaska and Vergara v. California: Evaluating the Constitutionality of Teacher Tenure in Alaska, 32 Alaska L. Rev. 395, 395 (2015).

8. Value-added models of teacher evaluation also weighed heavily in Vergara. According to plaintiffs’ expert, “a teacher’s effectiveness can be assessed and measured, and that ineffective teachers can be identified.” Vergara v. State, 246 Cal. App. 4th 619, 202 Cal. Rptr. 3d 262 (2016). While both sides agree on the importance of effective teachers, the state’s expert witness testified that

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in-school effects on children’s achievement were generally overstated when compared to out-of-school effects [and] student test scores were rarely under a teacher’s control, and were more often determined by peer-group composition of the group tested, including students’ social class and their parents’ educational level. [He] estimated that teachers account for approximately 10 percent of variation in aggregate scores, with the remaining 90 percent attributable to other factors. [He] further stated that VAM was ‘notoriously unreliable and therefore invalid’ in assessing educational outcomes[, but acknowledged on cross-examination] that a VAM analysis utilizing four years of data should be able to identify ‘very bad’ teachers. He agreed that a small percentage of teachers—approximately 1 to 3 percent—consistently have strong negative effects on student outcomes, regardless of the classroom and school composition.

Id. at 637.

9. For additional analysis and critique of the constitutional challenges to tenure, see Derek W. Black, The Constitutional Challenge to Teacher Tenure, 104 Calif. L. Rev. 75 (2016); Michele Aronson, The Deceptive Promise of Vergara: Why Teacher Tenure Lawsuits Will Not Improve Student Achievement, 37 Cardozo L. Rev. 393 (2015); Kevin G. Welner, Silver Linings Casebook: How Vergara’s Backers May Lose by Winning, 15 U. Md. L.J. Race Religion Gender & Class 121 (2015).

PROBLEM

Place yourself in the role of an attorney advisor to your state legislature’s committee on education. Your boss has assigned you to develop a bill to reform your state’s teaching workforce. The goal is to create a statutory framework that will improve teacher quality, ease administrative burdens, and efficiently allocate state resources. Operating with the constitutional limits outlined in this chapter, what changes or frameworks would you propose? Pay particular attention to the procedural protections you would or would not offer teachers, what system you would rely on to evaluate teachers, whether you would retain or alter tenure for new teachers, how you would compensate teachers, and the terms of employment that districts would or would not negotiate.

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A. CHARTER SCHOOLS

1. Overview: Creation, Control, and Politics

The topic of charter schools tends to engender charged emotions and positions on both sides. Many, however, are unclear as to exactly what a charter school is, what benefits it purportedly offers, and why some contingencies are so staunchly opposed to them. The following article by Sandra Vergari answers several of these basic questions about charter schools. The article also explores the politics surrounding charter schools. As you read the article, pay close attention to what distinguishes a charter school from traditional public schools and private schools, and how charter schools are started. Also, consider whether the pursuit of improved educational opportunities is the driving force behind the charter school movement or whether the major political interests supporting charter schools are using education as the playing field to pursue a political ideology and a larger agenda. On the other side, consider whether the resistance to charter schools is born out of genuine educational concerns or just political reflex.

Sandra Vergari, The Politics of Charter Schools

21 Educ. Pol’y 15 (2007)

Charter schools, and other market-based reforms such as school vouchers and the student tutoring provision of the No Child Left Behind Act of 2001, are steeped in politics largely because they challenge the legitimacy of traditional power and funding arrangements in public education. These reforms are blurring conventional distinctions between “public” and “private” in education.

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Charter schools are publicly funded entities that operate free from some or most of the regulations that apply to traditional public schools. The degree of regulatory freedom varies across [states] and the individual school charters. As originally conceived, charter schools are legally and fiscally autonomous entities that operate under contracts or charters. Negotiated between founders and authorizers, the charters address matters such as finance, governance, personnel, curriculum, and performance measures. The authorizers are public entities such as local and state school boards, university boards, the city of Milwaukee, the Indianapolis mayor’s office, and statutorily created charter school authorizer boards in Arizona and the District of Columbia. The authorizers monitor compliance with the charter and applicable state and local rules.

The decision to send a child to a charter school is made by a parent or guardian, not by a government entity. Charter schools may not charge tuition, and admissions processes must be nondiscriminatory. However, unlike traditional public schools, charter schools may cap enrollment. In return for regulatory relief, charter schools are supposed to be held accountable for their performance by their respective authorizers and by parental choice in the education marketplace.

Prior to the advent of charter schools, traditional public schools had contracted with private providers for noninstructional parts of education such as food services, custodial services, and transportation. Moreover, some school districts had engaged in contracting with private entities for the operation of entire schools, including management of student instruction. Although contracting with private providers for noninstructional services has been opposed by labor union advocates, it has been less controversial than contracting for fulfillment of the core mission of schooling. The quality of goods and services delivered in noninstructional areas is easier to assess than quality of student instruction. Most charter schools enjoy the freedom to contract with private entities for any number of services, including academic instruction and overall school operations. This private contracting is often beyond the control of school districts and teachers unions, thus provoking political controversy.

Charter schools are less controversial than school vouchers in large part because the charter school reform reflects fewer degrees of privatization than voucher plans. However, as a school choice reform, the charter school concept is much more controversial than intra- or interdistrict school choice programs that offer some decision-making power to parents but remain controlled by the traditional public school system.

In terms of delivery, charter schools are founded by individuals or groups based in the public or private sectors. In most states, a charter school governing board can hire a for-profit entity to operate the school, but the charter itself cannot be awarded to the for-profit company. A few states permit charters to be awarded to for-profit entities, and a few states prohibit for-profit entities from managing or operating charter schools.

On the matter of finance, charter schools may not charge tuition or levy taxes. They receive public funding from school districts and states and grants from the federal government. Charter schools may also seek and receive funding from for-profit entities, nonprofit organizations, and philanthropists.

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Charter school governance is supposed to be genuine site-based decision making rather than government by school district boards. Charter school governing boards are not elected by the general public but are bound by open-meetings laws. Some charter school laws regulate board membership with provisions such as those that prohibit charter school employees and members of school district boards from serving on charter school boards and requirements that charter school boards include parents.

As publicly funded entities, charter schools are typically bound by state rules pertaining to academic standards and testing. Accordingly, the academic purposes and outcomes of a charter school are supposed to be aligned with those public requirements. On the other hand, charter school curricula and pedagogy may diverge from those of traditional public schools—in concert with the private preferences and interests of both school founders and families sending students to the school. Thus, the charter school landscape includes a diverse array of curricula and instructional approaches. For example, some charter schools emphasize training in foreign language, others emphasize the arts, some emphasize vocational education, and others emphasize college preparation.

Politics of the Charter School Idea

The traditional “educational establishment” has long enjoyed monopoly control of K-12 public education. Members of this “traditional coalition” include teachers unions, school boards associations, and school administrators associations; some personnel in state education departments; schools of education that prepare teachers and school administrators; and interest group allies.

During the past two decades, an opposing advocacy coalition, the “reform coalition,” has mounted a series of challenges to the policy monopoly long enjoyed by the traditional coalition. These challenges include efforts to introduce market-based policy to public education, and charter schools compose a significant policy victory for the reform coalition. Participants in this coalition include the business community (education outsiders); professors (located primarily in the social sciences); personnel in the U.S. Department of Education; private foundations, think tanks, and education reform interest groups; a number of governors; and presidents.

According to the traditional public school ideology, schools are operated and financed by the government and do not compete with one another. Public schools are viewed as essential for the equitable distribution of education and the reproduction of democratic values. “This ideology, at times almost a ‘religion’ of public schooling, is manifested vividly in the reactions of its advocates to proposals they view as ‘illegitimate,’ such as for-profit management of public schools.” In contrast, adherents of the market ideology—the other prominent “secular religion” on the education scene—maintain that self-interested actions on the part of individuals in a system of competition and choice will yield societal benefits.

Rochefort and Cobb observe, “At the nexus of politics and policy development lies persistent conflict over where problems come from and, based on the1056 answer to this question, what kinds of solutions should be attempted.” The two coalitions define the major problems in public education differently. The traditional coalition tends to emphasize educational inputs, whereas the reform coalition focuses largely on the outputs of public education. The traditional coalition maintains that the public education system is doing its best with extant resources and, with more resources, outcomes would improve. The reform coalition asserts that charter schools can make more efficient and effective use of the same funds allocated to traditional public schools. Moreover, because charters must be renewed periodically, and charter schools can be closed because of various problems (including lack of students), these schools are supposed to be more accountable than traditional public schools, which are rarely closed for poor performance.

Because of political motives, failure to recognize the scope of charter school issues, or both, some interests characterize charter school politics in terms of profit versus children, public schools versus privatization, Democrat versus Republican, conservative versus liberal, business versus teachers unions, individual interests versus democratic values, and competition versus complementarity. Such portrayals are inaccurate. The nature of the debate and the alignment of political interests surrounding charter schools are more complex.

The long-standing equilibrium in education policy has been disrupted by the reform coalition. The charter school idea is supported by a coalition that crosses Democratic and Republican party lines. For example, in 2001, shortly after Bush announced an education reform plan that included elements of privatization, competition, and choice, a group of “New Democrats” in Congress expressed support for greater competition and choice in education. The reform coalition also extends beyond those with a primary interest in privatization. The coalition includes low-income and minority families residing in underperforming school districts and their representatives and supporters. These constituents do not necessarily embrace privatization as a guiding ideological principle. Rather, they are interested in charter schools largely on the basis that they promise to bring greater equity to public education by providing both choice and high-quality education to populations at a disadvantage in the current public education system.

Charter school laws have been adopted across the United States despite strong opposition from members of the traditional coalition. A concern of the traditional coalition is that charter schools are contributing to new ways of thinking about the definition of a public school. Indeed, politically powerful teachers unions have worked to prevent the charter school reform from achieving legitimacy. The charter school laws in place demonstrate that the power of an idea sometimes prevails over the power of established political interests. As a result of political compromises, however, charter school laws in several states diverge significantly from the charter concept promoted by advocates. Therefore, charter school politics differ across state and local settings, in concert with differences across state laws and local political cultures.

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Finance

In most states, when a student chooses to attend a charter school, the per-pupil funding that would otherwise be allocated to a traditional public school follows the student to the charter school. The traditional coalition asserts that charter schools are selfishly taking money away from public schools. The reform coalition asserts that charter schools are public schools and that public funds belong to families, not to school districts.

Across the nation, school districts have reported significant losses of revenue because of charter schools. In Buffalo, New York, where charter school enrollment was about 5,400 in 2005-2006, charter school payments composed nearly 10% of the district’s general fund. In cities across the nation, New Orleans has the highest percentage of public school students attending charter schools, at 69%. Dayton, Ohio, and Washington, D.C., rank second and third, respectively, in terms of charter school market share in a single locale, with about 25% of public school students in each jurisdiction attending charter schools. In each of 13 additional jurisdictions, at least 15% of the public school students attended charter schools in 2005-2006.

Nonetheless, compared to traditional public schools, charter schools often receive fewer per-pupil public funds. Some charter schools receive less than 100% of per-pupil operating revenue, and charter schools typically do not receive facilities funding equivalent to districts. Indeed, lack of access to comparable facilities funding is the foremost cause of funding discrepancies between charter schools and traditional public schools. Analyses of charter school finance also suggest that compared to traditional public schools, charter schools serving high-needs students in urban areas are not funded equitably and may be substantially underfunded. Charter schools may attempt to realize some cost savings in labor. Several studies indicate that teacher certification rates, experience, and salaries in charter schools lag those of teachers in traditional public schools.

Conclusion

Charter school politics are battles about competing definitions of the concept of public school—what a public school looks like, how it is financed and governed, how it operates, and how it is held accountable. As a public-private hybrid, charter schools compose a relatively moderate reform when considered in the context of plans that would retain the long-standing policy monopoly in public education and proposals for almost complete privatization through a public voucher system. The diverse nature of the charter school reform has made it attractive to constituents of different ideological and political persuasions. Indeed, both liberals and conservatives have founded charter schools.

The politics of charter schools offers a fruitful area of inquiry for analysts interested in privatization, the politics of research, and policy making for public education. Political and scholarly debates about the academic performance of charter schools are certain to continue. However, the future of charter school politics will be shaped not by student achievement data but rather by the values,1058 self-interest, mobilization efforts, and lobbying power of participants in the political arena.

NOTES AND QUESTIONS

1. Vergari points out that public schools routinely contract out various noninstructional educational services, such as food, transportation, and cleaning, to the private sector. Charter schools involve contracting out instructional services. Is there reason to contract out the former but not the latter?

2. The Department of Education will not fund charter schools that are owned and operated as for-profit institutions. The Ninth Circuit affirmed this position in Arizona State Board for Charter Schools v. United States, 464 F.3d 1003 (9th Cir. 2006). This ruling, however, would seem to present no barrier so long as a nonprofit owns the charter school and then contracts out educational services to for-profit entities. Is the possibility that some entity is profiting from the delivery of instruction to public students a basis on which to oppose charter schools, or does the ability of private entities to turn a profit simply show their efficacy?

3. What are the purported benefits of charter schools? What are the purported limitations or problems?

4. Should school districts have a monopoly over public education? Is competition a necessary component of school improvement? One asserted benefit of charter schools is that they will bring needed competition to public schools. Are traditional schools in a position to compete effectively with charter schools given that the model of traditional public schools is to provide broad-based services for communities, not to attract particular constituents? Is one possible result that charter schools will outcompete public schools for the best and most informed students and public schools will be left with the students charters do not want?

5. How, if at all, do the accountability systems of public schools and charter schools differ? Which is better?

6. Should charter schools receive the same per-pupil funding as other public schools? Should public schools lose funding when charter schools thrive? Is the funding for public schools “public money” that should stay with school districts, or does the money belong to individual parents who ought to be able to divert those resources to the schools they prefer?

Charter schools have enjoyed tremendous growth and policy support over the past two decades. As noted by Vergari, the first charter school was not opened until 1992 in Minnesota and, at the time, only one state other than Minnesota had legislation that even authorized the creation of a charter school. But the next year, eight states authorized the creation of charter schools, and the actual number of charter schools in operation grew to thirty-six. U.S. Dep’t of Educ., Evaluation of the Public Charter Schools Program: Year One Evaluation1059 Report (2000). Three years later, more than half of the states had authorized the creation of charter schools, the result of which was that the number of charter schools continued to expand exponentially, with their number doubling in each of the next several years. Id. By 2011, there were more than 5,000 charter schools in operation and nearly 2 million children enrolled in them. Nat’l Alliance for Pub. Charter Schs., Back to School Tallies: Estimated Number of Public Charter Schools & Students, 2011-2012, at 1 (Dec. 2011). By 2015, those numbers had jumped again to nearly 3 million students and almost 7,000 charter schools. Ctr. for Educ. Reform, Charter School Laws Across the States: 2015 Rankings and Scorecard 2 (2015). This growth has also produced significant shifts in education funding. Between 2008 and 2012 alone, funding for charter schools doubled in some states, while the funding for traditional public schools shrank or remained flat. See Derek W. Black, Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, Wash. U. L. Rev. (forthcoming 2017). Today, only eight states lack charter school legislation, four of which are in the upper northwest where student populations are relatively small and deconcentrated. Ctr. for Educ. Reform, supra at 92.

Federal legislation has likewise rapidly changed over the past two decades. It has gone from expressing passing interest to encouraging, if not compelling, states to adopt charters. The first federal funding of charter schools was in 1995 and was a mere $6 million appropriation. U.S. Dep’t of Educ., supra, at i. Within just five years, Congress had increased the appropriation to $145 million, which represented incredible growth, but which was still a minimal amount in relation to other education funding. Id. This trend of increase, however, continued in subsequent years with charter schools becoming a dominant federal strategy by 2009. In 2009, the Obama administration created a $4.5 billion competitive grant program designed to spur specific changes in educational policy. Each state’s eligibility for a grant was contingent on promoting charter schools and eliminating barriers to their growth. As the secretary of education proclaimed, “[s]tates that do not have public charter laws or put artificial caps on the growth of charter schools will jeopardize their applications under the Race to the Top Fund.…We want real autonomy for charters combined with a rigorous authorization process and high performance standards.” Press Release, U.S. Dep’t of Educ., States Open to Charters Start Fast in “Race to Top”: Education Secretary Seeking Autonomy with Real Accountability for School Innovators (June 8, 2009). In response, many states quickly dropped their traditional resistance to charters, the most important of which were explicit caps on the number of charter schools that could operate in a state. See, e.g., Maren Hulden, Charting a Course to State Action: Charter Schools and §1983, 111 Colum. L. Rev. 1244, 1253-1254 (2011).

What explains the increasing support for charter schools in recent years: their educational prowess, loss of faith in public schools, parental preference for choice, federal support, or something else?

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2. Structure, Function, and Constitutionality

As their name indicates, charter schools gain their existence based on the grant of a charter from the state. The charter becomes a school’s guiding operational document and is, in essence, a contract with the state to deliver educational services pursuant to the specified conditions and requirements it sets forth. The exact details and contours of these charters are controlled by state statutes. As of 2015, 42 states had enacted charter school statutes, allowing for their creation. Ctr. for Educ. Reform, Charter School Laws Across the States: 2015 Rankings and Scorecard (2015). Eight states had not (Alabama, Kentucky, Montana, Nebraska, North Dakota, South Dakota, Vermont, and West Virginia). Id. at 92. But as a later case excerpt will explain, Washington’s statute was recently declared unconstitutional.

The exact structure and requirements for charter schools varies by state. In many respects, charter schools may resemble private schools or government contractors that have significant flexibility and independence in carrying out a basic function for the state. But in other respects, charter schools closely resemble any other public schools, as state statutes obligate them to comply with a host of other public laws, certification, reporting, and miscellaneous requirements.

While charter school statutes vary, they do tend to address common issues. First, while many states have recently changed their laws, some states continue to cap the number of charter schools they will authorize at a relatively low number. North Carolina, until recently, had capped the number of charter schools in the state at 100, which would amount to about one charter school per district. Mississippi has limited charter schools by requiring that the location in which they are to be created meets various criteria. For instance, the state allows for the conversion of public schools to charter schools, but only when the public school has been labeled as failing for three years. The result has been to limit the number of charter school conversions to 12 over a six-year period. Ctr. for Educ. Reform, 2011 Charter School Laws: CER Full Report 47 (2011). In other states, however, there are no caps on the number of charters a state will grant.

The second important aspect of charter school laws is who authorizes the creation of a charter school and the process for challenging denials of charters. In some states, the state board of education reviews and authorizes charter school applications, whereas in others the local school board or a special commission may do so. The third important aspect of charter laws is the extent to which charter schools must follow state curricula, administer state tests, and submit to ongoing oversight by the chartering authority. Finally, state statutes will dictate how charter schools are funded and at what level. These statutes may also dictate, to some extent, how charter schools spend those funds.

The most effective way of understanding charter schools is not, however, to examine those things charter schools have in common, but rather to closely examine how a particular state has organized its charter schools (understanding that other states may do it differently). The case below involves a constitutional challenge to California’s charter school law. Although California has since made changes to its charter school laws, the case provides a good explanation and1061 overview of how a charter school law operates. The case, like Vergari’s article, also discusses the politics motivating and opposing various aspects of the law.

Wilson v. State Board of Education

89 Cal. Rptr. 2d 745 (Ct. App. 1999)

A. The Legislature Has Plenary Power over Public Schools

As a preamble to addressing the amalgam of constitutional objections laid out in this appeal, we emphasize that the Legislature’s power over our public school system is plenary, subject only to constitutional restraints. Since 1879 our Constitution has declared the Legislature’s preeminent role in encouraging education in this state, as well as its fundamental obligation to establish a system of public schools: “A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” (art. IX, §1) “The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established.” Id. §5.

There can thus be no doubt that our Constitution vests the Legislature with sweeping and comprehensive powers in relation to our public schools, including broad discretion to determine the types of programs and services which further the purposes of education.

Appellants first maintain that the [amendments to the Charter Schools Act] violate article IX, section 5 because they amount to abdication of any state control over essential educational functions, e.g., control over curriculum, textbooks, educational focus, teaching methods and operations of charter schools. This is so, they argue, because the parents and teachers who write the charters and the grantees who operate the schools now run the show with respect to all these functions.

Appellants confuse the delegation of certain educational functions with the delegation of the public education system itself. As explained in California Teachers Assn. v. Board of Trustees (1978), the public school system is the system of schools, which the Constitution requires the Legislature to provide—namely kindergarten, elementary, secondary and technical schools, as well as state colleges—and the administrative agencies which maintain them. However, the curriculum and courses of study are not constitutionally prescribed. Rather, they are details left to the Legislature’s discretion. Indeed, they do not constitute part of the system but are merely a function of it. The same could be said for such functions as educational focus, teaching methods, school operations, furnishing of textbooks and the like.

Moreover, appellants take too myopic a view of what it means for the state to retain control of our public schools, including charter schools. The Charter Schools Act represents a valid exercise of legislative discretion aimed at furthering the purposes of education. Indeed, it bears underscoring that charter schools1062 are strictly creatures of statute. From how charter schools come into being, to who attends and who can teach, to how they are governed and structured, to funding, accountability and evaluation—the Legislature has plotted all aspects of their existence. Having created the charter school approach, the Legislature can refine it and expand, reduce or abolish charter schools altogether. In the meantime the Legislature retains ultimate responsibility for all aspects of education, including charter schools. “‘Where the Legislature delegates the local functioning of the school system to local boards, districts or municipalities, it does so, always, with its constitutional power and responsibility for ultimate control for the common welfare in reserve.’”

B. Charter Schools Are Part of California’s Public School System

Appellants further complain that [the Charter Schools Act] has spun off a separate system of charter public schools that has administrative and operational independence from the existing school district structure, and whose courses of instruction and textbooks may vary from those of noncharter schools. Such splintering, appellants charge, violates the article IX, section 5 mandate to the Legislature to provide a “system of common schools.”

Article IX, section 6 defines “Public School System” as including “all kindergarten schools, elementary schools, secondary schools, technical schools, and state colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them.”

The key terms in these provisions are “common” and “system.” The concept of a “common” school is linked directly to that of a “free school,” which the Constitution mandates must be “kept up and supported” in each district for a prescribed annual duration. Historically, common schools were the “primary and grammar” schools, distinguished from other instrumentalities of the public school system by virtue of being the exclusive beneficiaries of the state school fund.

As to the concept of a system, we note that early on in California history “the contest was between a state system and a local system of common schools.” The notion of a single state system, under state control, prevailed [in] Piper v. Big Pine School Dist., 226 P. 926 (1924)[, where this court held the existence of federal school for Native Americans] within the territorial boundaries of Big Pine School District did not satisfy the mandate of article IX, section 5 because the state had no control over that school.

Thus the term “system” has come to import “‘unity of purpose as well as an entirety of operation, and the direction to the legislature to provide “a” system of common schools means one system which shall be applicable to all the common schools within the state.’” Serrano v. Priest, 487 P.2d 1241 (1971). This means that the educational system must “be uniform in terms of the prescribed course of study and educational progression from grade to grade.” Id. at 1241.

From this perspective it is apparent that charter schools are part of California’s single, statewide public school system. First, the Legislature has explicitly found that charter schools are (1) part of the article IX “Public School System”; (2) under its jurisdiction; and (3) entitled to full funding. As well, the Legislature1063 has directed that the Charter Schools Act “shall be liberally construed to effectuate [these] findings….”

Second, the establishment of charter schools does not create a dual system of public schools, as, for example, would be the case if there were a competing local system. Rather, while loosening the apron springs of bureaucracy, the Act places charter schools within the common system of public schools, as the following provisions illustrate: Charter schools by law are free, nonsectarian and open to all students. They cannot discriminate against students on the basis of ethnicity, national origin, gender or disability. Further, charter schools must meet statewide standards and conduct pupil assessments applicable to pupils in noncharter public schools; must hire credentialed teachers; and are subject to state and local supervision and inspection. Finally, beginning next year, charter schools must offer the minimum duration of instruction as required of all other public schools.

In sum it is clear that the Act brings charter schools within the system uniformity requirement because (1) their students will be taught by teachers meeting the same minimum requirements as all other public school teachers; (2) their education programs must be geared to meet the same state standards, including minimum duration of instruction, applicable to all public schools; and (3) student progress will be measured by the same assessments required of all public school students.

Moreover, the Act assures that charter schools will receive funding comparable to other public schools. In addition, it guards against the flow of funds to schools outside the system. For example, the Act prohibits the conversion of private schools to charter schools. It also bars charter schools from receiving any public funds for any pupil also attending a private school that charges the family for tuition.

C. Charter Schools Are Under the Exclusive Control of Officers of the Public Schools and Fall Under the Jurisdiction of the Public School System

Next, appellants contend that charter schools offend constitutional provisions calling for public schools to be under the exclusive control of officers of the public school system. We find no problem.

Article IX, section 8 provides in part: “No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools….”

This section endeavors to (1) prohibit the use of public funds to support private schools, whether sectarian or not; and (2) preserve strict separation between religion and public education. Appellants attempt to build the argument that charter schools are private, not public schools. They are convinced that under [the Charter Schools Act], officers of public schools have no real control over the educational product delivered by charter schools because these officers cannot deny a charter petition except upon finding that the educational program is unsound, the petitioners are “demonstrably unlikely” to1064 succeed in implementing the program, or that the petition lacks certain mandatory items. According to appellants, this means the charter grantees are in control, and again according to appellants, they are not officers of the public schools.

First, the terms of [the Charter Schools Act] belie these contentions. To begin with, charter schools are public schools because, as explained above, charter schools are part of the public school system. Further, the Legislature has specifically declared that charter schools are under “the exclusive control of the officers of the public schools.”

Second, one court construing the “exclusive control” language harkened back to early constitutional history, observing that “[t]he language of article IX, section 8, has remained unchanged since its proposal in the constitutional convention of 1878–1879 and its adoption by the People on May 7, 1879. The delegates were seriously concerned with assuring that public funds should only be used for support of the public school system they were creating. Thus, in another context a delegate expressed concern about any ‘opposition system of schools against the common schools of the State….’” Obviously charter schools are not in opposition to the public school system. On the contrary, they are a part of that system. Although they have operational independence, an overarching purpose of the charter school approach is to infuse the public school system with competition in order to stimulate continuous improvement in all its schools.

Third, we wonder what level of control could be more complete than where, as here, the very destiny of charter schools lies solely in the hands of public agencies and offices, from the local to the state level: school districts, county boards of education, the Superintendent and the Board. The chartering authority controls the application approval process, with sole power to issue charters. Approval is not automatic, but can be denied on several grounds, including presentation of an unsound educational program. Chartering authorities have continuing oversight and monitoring powers, with (1) the ability to demand response to inquiries concerning financial and other matters; (2) unlimited access to “inspect or observe any part of the charter school at any time”; and (3) the right to charge for actual costs of supervisorial oversight. As well, chartering authorities can revoke a charter for, among other reasons, a material violation of the charter or violation of any law. Short of revocation, they can demand that steps be taken to cure problems as they occur. The Board, upon recommendation from the Superintendent, can also revoke any charter or take other action in the face of certain grave breaches of financial, fiduciary or educational responsibilities. Additionally, the Board exercises continuous control over charter schools through its authority to promulgate implementing regulations. Finally, public funding of charter schools rests in the hands of the Superintendent.

Fourth, the sum of these features, which we conclude add up to the requisite constitutional control over charter schools, are in place whether a school elects to “operate as, or be operated by, a nonprofit public benefit corporation,” or whether it remains strictly under the legal umbrella of the chartering1065 authority. In other words, even a school operated by a nonprofit could never stray from under the wings of the chartering authority, the Board, and the Superintendent.

Fifth, speaking directly to appellants’ repeated concern that charter grantees will be making decisions about curriculum and similar educational functions and thus the necessary control element has been abandoned, we reiterate that these functions are details left to legislative discretion. With the Charter Schools Act, the Legislature has exercised its discretion to sanction a certain degree of flexibility and operational independence, thereby giving the nod to healthy, innovative practices and experimentation. Central to its intent is the goal of stimulating continuous improvement in all public schools by fostering competition within the public school system itself. And in any event, through their powers to deny petitions and revoke charters, chartering authorities do exercise control over these educational functions.

Sixth, as to appellants’ point that charter grantees are not officers of public schools, the law again belies this proposition. The Constitution gives the Legislature the “power, by general law, to provide for the incorporation and organization of school districts…of every kind and class, and [to] classify such districts.” Seizing this power, the Legislature has declared that “[a] charter school shall be deemed to be a ‘school district’ for purposes of Section 41302.5 and Sections 8 and 8.5 of Article XVI….”

Thus, under this scheme, charter school officials are officers of public schools to the same extent as members of other boards of education of public school districts. So long as they administer charter schools according to the law and their charters, as they are presumed to do, they stand on the same constitutional footing as noncharter school board members. If they violate the law, the charter will be revoked.

F. The Act Does Not Impermissibly Delegate Legislative Powers

Appellants’ final protest concerns the effect of the unamended Charter Schools Act, should we strike [the current amendments]. They insist that the underlying enactment amounts to an unconstitutional delegation of legislative powers to the Board and other chartering authorities. Specifically, they assert that the power to issue charters has been handed over without standards or guidance as to a whole quilt of concerns: decisions about curriculum, texts, educational focus, and teaching methods; minimum qualifications of charter grantees; [and] whether, through apt terms in the charter, to retain control over public educational functions of the charter schools. Appellants cast each of these issues as implicating “a fundamental policy decision which the Legislature [is] required to make….”

[A]ppellants misunderstand the legislative function. “Essentials of the legislative function include the determination and formulation of legislative policy. ‘Generally speaking, attainment of the ends, including how and by what means they are to be achieved, may constitutionally be left in the hands of others. The Legislature may, after declaring a policy and fixing a primary standard, confer upon executive or administrative officers the “power to fill1066 up the details” by prescribing administrative rules and regulations to promote the purposes of the legislation and to carry it into effect.’”

Here, the Legislature made the fundamental policy decision to give parents, teachers and community members the opportunity to set up public schools with operational independence. From there, the Legislature set limits on the number of charter schools that can exist at any particular time and their term; controlled against charter status by way of private school conversion; and fixed standards for charter schools. Having set the policy and fixed standards and limits, the Legislature did its job: “In the educational setting, legislatures rarely control public school operations directly, but delegate authority which permits state, regional, and local education agencies to establish school policies and practices.”

Reasonable grants of power to administrative agencies will not offend the nondelegation doctrine so long as adequate safeguards exist to protect against abuse of that power. Here, procedures are in place to safeguard the chartering authority decision-making process. These include procedures for review of denied petitions and open meeting requirements.

Finally, while it is obvious that appellants wish for more—and more detailed—standards and guidelines, more could not be better in this situation where a primary purpose of the Act is to encourage educational innovation, experimentation and choice in order to improve learning and expand learning opportunities for all students. How can you write the score to a symphony yet to be created?

NOTES AND QUESTIONS

1. One charge against charter schools is that, although they are funded with public money, they are effectively private schools and, as such, are not part of the public school system or subject to its laws. This court, at least, rejects that charge and emphasizes that charter schools are public schools. The fact that the state has delegated some of its educational authority to entities outside of the traditional public school districts does not make them any less public; it simply indicates that more than one type of entity is exercising delegated state educational authority. While this is true, does the amount of delegation and the discretion afforded therein to charter schools have any bearing on whether they are genuinely public? Consider New Orleans, where the traditional public schools closed in the aftermath of Hurricane Katrina and were replaced by charter schools. Danielle Holley-Walker, The Accountability Cycle: The Recovery School District Act and New Orleans’ Charter Schools, 40 Conn. L. Rev. 125, 128 (2007). Does a school system comprised entirely of charter schools amount to a system where the state has turned education over to private contractors, or would it be equivalent to a school district, just in a different form? What makes a school public: who operates it, who attends it, who funds it, who controls it, or whether tuition is charged?

2. The recognition of charter schools as state actors has important federal law implications as well, as state actors are subject to the U.S. Constitution.1067 Those aspects of charter schools that resemble a private contracting relationship, however, make charter schools’ state actor status more complex than traditional public schools. For instance, a student’s attendance at a charter school is voluntary. Suppose a state statute or the charter of the school indicates that students who voluntarily exercise the option to attend a charter school will attend it under a specific set of conditions, such as particular behavior, good grades, and so on. Could such a charter school remove students, without due process, based on a violation of these conditions under the theory that the student had waived his or her right to constitutional challenges by voluntarily enrolling in the school? At least one appellate court has, in effect, said yes. Scott B. v. Bd. of Trustees of Orange Cty. High School of Arts, 158 Cal. Rptr. 3d 173 (Ct. App. Cal. 2013).

3. The court indicates that charter schools are designed to insert competition into the public school system. A magnet school is the closest analogy to a charter school in terms of creating competition. Magnet schools do, in some sense, compete against other schools within a district, but magnet schools do not fall outside of the control, administration, and financial structures of the school district in which they reside. Thus, while individual schools might suffer from competition from a magnet school, the overall district should not be negatively affected. In contrast, charter schools are generally outside the structure of a school district and, thus, they have the potential to act contrary to the district’s interests. What role, if any, should competition play in public schools?

4. In some instances, charter schools can put the financial solvency and future viability of school districts in jeopardy. See generally Derek W. Black, Charter Schools, Vouchers, and the Public Good, 48 Wake Forest L. Rev. 445, 448 (2013); Mary E. Wright, Single/Majority Race Charter Schools: Charting a New Course in the Aftermath of the Failed Mandates of Brown v. Board of Education, 9 Rutgers Race & L. Rev. 1, 2-3 (2007). The problem is most acute in low-income districts whose student populations are small. Losing students can significantly drive up their per-pupil costs. This problem can be exacerbated by state policies that reduce the school district’s budget and direct those funds to charter schools. For instance, Chester Upland School District (CUSD) enrolls less than 4,000 students and has one of the lowest tax bases in Pennsylvania. Pennsylvania law requires school districts to provide charter schools with per-student funding. For each special education student enrolled in a charter school, CUSD was required to pay about $24,000. In total, CUSD owed the local charter school $43 million in 2012, which amounted to about half CUSD’s entire budget. This debt, among others, left the district with insufficient funds to pay its teachers and operate the regular public schools. After litigation, the state eventually agreed to assist the district with its debts. PA’s Chester-Upland School District Reaches Settlement in School Funding Lawsuit, Nat’l Educ. Access Network (Sept. 2012), http://schoolfunding.info/2012/09/pas-chester-upland-school-district-reaches-settlement-in-school-funding-lawsuit/.

5. Is the grant of flexibility to charter schools beyond what public schools have consistent with the notion or constitutional mandate of a uniform school system? Likewise, are charter school statutes that outline only general educational requirements consistent with the principles articulated by several courts1068 in the poverty chapter that the state must ensure qualitative education standards and outcomes? Do charter schools also heighten the possibility of unequal educational opportunities for those students excluded from high-quality charters or enrolled in low-quality charters?

League of Women Voters of Washington v. State

184 Wash. 2d 393 (2015)

In November 2012, Washington voters approved I–1240, codified in the Act, providing for the establishment of up to 40 charter schools within five years. The Act was intended to provide parents with “more options” regarding the schooling of their children. But the new schools came with a trade-off: the loss of local control and local accountability. Charter schools must provide a basic education, similar to traditional public schools, including instruction in the essential academic learning requirements, which are developed by the superintendent of public instruction. However, under the Act’s provisions, charter schools “free teachers and principals from burdensome regulations that limit other public schools” thereby giving charter schools “the flexibility to innovate” regarding staffing and curriculum. Charter schools are exempt from many state rules. With the exception of “the specific state statutes and rules” identified in RCW 28A.710.040(2) and any “state statutes and rules made applicable to the charter school in the school’s charter contract,” charter schools are “not subject to and are exempt from all other state statutes and rules applicable to school districts and school district boards of directors…in areas such as scheduling, personnel, funding, and educational programs.”

Under the Act, charter schools are devoid of local control from their inception to their daily operation. Charter schools can be approved in two ways. First, the Washington Charter School Commission, which is an “independent state agency” established by the Act and made up of nine appointed members, has the power to establish charter schools anywhere in the State. Second, school districts may apply to the Washington State Board of Education for permission to authorize charter schools. The commission and approved school districts (referred to as “charter school authorizers”) solicit charter applications, approve or deny applications, and negotiate and execute charter contracts. Charter school authorizers also monitor performance and legal compliance of charter schools, but such oversight cannot “unduly inhibit the autonomy granted to charter schools,” and such oversight must also be consistent with the principles and standards developed by another private organization, the National Association of Charter School Authorizers.

As for daily operation, charter schools are not governed by elected local school boards. Instead, charter schools are operated by a “charter school board,” which is “appointed or selected under the terms of a charter application to manage and operate the charter school.” The board is responsible for functions typically handled by an elected school board, including hiring, managing, and discharging employees; receiving and disbursing funds; entering contracts; and determining enrollment numbers.

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As for funding, the Act requires the superintendent to apportion funds to charter schools on the same basis as public school districts. Such disbursements include basic education moneys appropriated by the legislature in the biennial operating budget for the use of common schools and moneys from the common school construction fund.

Analysis

We begin by noting what this case is not about. Our inquiry is not concerned with the merits or demerits of charter schools. Whether charter schools would enhance our state’s public school system or appropriately address perceived shortcomings of that system are issues for the legislature and the voters. The issue for this court is what are the requirements of the constitution. Accordingly, “[o]ur review here is limited to the issue of whether the voters acted in compliance with our state’s constitution in expressing their collective will.” “[W]hile initiative measures are reflective of the reserved power of the people to legislate, the people in their legislative capacity remain subject to the mandates of the Constitution.” Moreover, we have made clear that the initiative process is limited in scope to subject matter that is legislative in nature, that an initiative attempting to achieve something not within its power is invalid, and that the initiative power may not be used to amend the constitution.

Charter Schools Are Not Common Schools

This case turns on the language of article IX, section 2 of our state constitution and this court’s case law addressing that provision. Article IX, section 2 of the Washington Constitution provides:

The legislature shall provide for a general and uniform system of public schools. The public school system shall include common schools, and such high schools, normal schools, and technical schools as may hereafter be established. But the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.

In order to tap the funding sources identified in article IX, I–1240 declared charter schools to be “common schools.” The Act also directed that charter schools are to be funded “as other public schools,” and defined “[p]ublic schools” to mean “the common schools as referred to in article IX of the state constitution, including charter schools,” and other schools below the college level and maintained at public expense. Charter schools must report student enrollment and comply with applicable reporting requirements to receive state or federal funding. The Act directs the superintendent of public instruction to allocate funding for charter schools “based on the same funding criteria used for noncharter public schools,” and charter schools are “eligible to apply for student grants on the same basis as a school district.” The Act provides that charter schools “shall be included in the levy planning, budgets, and funding distribution in the same manner as other public schools in the district,” that school districts “must allocate levy moneys to a conversion charter school,” and1070 that charter schools “must be included in levy planning, budgets, and funding distribution in the same manner as other public schools.” The Act additionally declares that charter schools are “eligible for state matching funds for common school construction.” Moreover, I–1240’s voter’s pamphlet made clear to voters that the fiscal impact of the initiative was merely to shift existing school funding from existing (common) schools to charter schools.

Relevant here, I–1240 also provides that charter schools are “governed by a charter school board,” which is “appointed or selected…to manage and operate the charter school.” The charter school board has the power to hire and discharge charter school employees and may contract with nonprofit organizations to manage the charter school. I–1240 also makes charter schools “free from many regulations” that govern other schools. Charter schools are “exempt from all school district policies,” as well as “all…state statutes and rules applicable to school districts” except those listed in I–1240 section 204(2) and those made applicable in the school’s charter contract.

This case addresses the designation, funding, and control of charter schools as set forth in I–1240 and that initiative’s compliance with article IX, section 2. Accordingly, the case is largely determined by our prior decision in School District No. 20 v. Bryan, 51 Wash. 498, 99 P. 28 (1909). Intervenors ask us to “overturn Bryan,” but we decline to do so. Bryan has been the law in Washington for more than a hundred years and is repeatedly relied on as authority by Washington’s appellate courts. Intervenors offer no compelling reason to abandon Bryan. Similarly, the State asks us to “recognize an evolving common school system” and not read Bryan as “a static statement of constitutional imperatives.” But in Bryan this court established the criteria for evaluating a “common school” within the meaning of article IX, and warned, “The words ‘common school’ must measure up to every requirement of the constitution…and whenever by any subterfuge it is sought to qualify or enlarge their meaning beyond the intent and spirit of the constitution, the attempt must fail.” Bryan established the rule that

a common school, within the meaning of our constitution, is one that is common to all children of proper age and capacity, free, and subject to and under the control of the qualified voters of the school district. The complete control of the schools is a most important feature, for it carries with it the right of the voters, through their chosen agents, to select qualified teachers, with powers to discharge them if they are incompetent.

Here, because charter schools under I–1240 are run by an appointed board or nonprofit organization and thus are not subject to local voter control, they cannot qualify as “common schools” within the meaning of article IX.

The Charter School Act’s Funding Provisions Fail

As Bryan noted, when adopting our constitution the people of this state “endeavored to protect and preserve the funds set apart by law for the support of the common school from invasion, so that they might be applied exclusively to…such schools.” As discussed above, charter schools do not qualify as common schools. As explained below, by diverting common school funds to1071 charter schools, the Act contravenes article IX, section 2 of the Washington Constitution.

Our constitution requires the legislature to dedicate state funds to support “common schools.” Wash. Const. art. IX, §§2, 3. As noted, section 2 provides that “the entire revenue derived from the common school fund and the state tax for common schools shall be exclusively applied to the support of the common schools.” Id. Section 3 establishes a separate construction fund for the sole use of the common schools. Using any of those funds for purposes other than to support common schools is unconstitutional. This court has repeatedly struck down laws diverting common school funds to any other purpose.

Under the Act, money that is dedicated to common schools is unconstitutionally diverted to charter schools. As noted, the Act provides that charter schools are to be funded on the same basis as common schools. The superintendent must distribute money from the constitutionally restricted basic education allocation to charter schools on the same basis as common schools. In other words, under the terms of the Act’s provisions the source of funds for the operation of charter schools is the basic education moneys that are otherwise dedicated to the operation of common schools.

However, the constitution sets aside certain property and other moneys to establish a permanent fund for the exclusive use of common schools, referred to in article IX as the “common school fund.” Wash. Const. art. IX, §§2, 3. Article IX, section 2 also extended constitutional protection to any “state tax for common schools.” In Yelle, this court addressed the restrictions on the use of basic education funds allocated to common schools. Yelle struck down a law that would have diverted tax revenues allocated to the common schools to support a vocational rehabilitation program operated by a state board. Id. This court explained that it was “beside the question” that the vast majority of state funding in place at that time, whether derived from tax revenues or “cash on hand,” could have been allocated to other purposes in the first instance. Id. The constitutional protection afforded to common school appropriations is not dependent on the source of the revenue (i.e., the type of tax or other funding source) or the account in which the funds are held (i.e., the general fund or other state fund). Rather, this court held that all money “allocated to the support of the common schools…constitute[s] a ‘state tax for the common schools’ in contemplation of Art. IX, §2, of the constitution.” Id. Yelle continued, “[O]nce appropriated to the support of the common schools,” funds cannot “subsequently be diverted to other purposes.” This court cautioned that to hold otherwise “would be calamitous.”

Under the Act, charter schools receive funds from the legislature’s basic education allocation for the common schools. By statute, all of the basic education funds in the biennial operations budget are designated for the exclusive use of the common schools. These funds “made available by the legislature for the current use of the common schools” are then distributed annually by the Superintendent to “each school district of the state operating a basic education instructional program.” That the specific common school property levy is only a portion of the state funds used to support common schools does not alter the protection afforded to the entire basic education allocation as a “‘state tax for1072 common schools’” within the meaning of article IX, section 2. The Act unconstitutionally reallocates these restricted funds to charter schools, which do not qualify as common schools.

Compounding this problem, the State does not segregate constitutionally restricted moneys from other state funds. Nor can it demonstrate that these restricted moneys are protected from being spent on charter schools. Given this absence of segregation and accountability, we find unconvincing the State’s view that charter schools may be constitutionally funded through the general fund. Historically, the state common school funds were maintained in a separate public school account and distributed to the common schools by the Superintendent. While some other constitutionally restricted state funds continue to be maintained in separate accounts (e.g., common school construction fund (Wash. Const. art. IX, §3), gas taxes for transportation purposes (Wash. Const. art. II, §40)), since at least 1967, the constitutionally restricted common school property levy revenues have been deposited in the State’s “general fund,” which is used for the basic education allocation. There is no way to track the restricted common school funds or to ensure that these dollars are used exclusively to support the common schools.

Our constitution directs the legislature to establish and fund common schools and restricts the legislature’s power to divert funds committed to common schools for other purposes even if related to education. Const. art. IX, §§1–3. The Charter School Act’s diversion of basic education funds allocated to the support of the common schools and common school construction funds is unconstitutional and void.

We also disagree with the State’s view that the Act’s remaining provisions are saved because funding “follows the student” and in any event charter schools could be funded out of the state general fund. Br. of Resp’t/Cross–Appellant State of Wash. at 40. The fact that public school money distributions are generally based on per capita student attendance does not mean that common school funds are available for students who do not attend common schools. Where a child is not attending a common school, there can be no entitlement to “an apportionment of the current state school fund, to a credit predicated on attendance of children at such…school.” State v. Preston, 79 Wash. 286, 289, 140 P. 350 (1914).

In sum, the Charter School Act violates article IX, section 2 because charter schools are not common schools despite the Act’s attempt to so designate them. The Act’s designated funding mechanisms fail, and these provisions are not severable from the remainder of the Charter School Act.

QUESTIONS

1. Are there meaningful distinctions between the charter school system in Washington and California? Are there meaningful differences between the constitutional structures in the two states? Regardless, can the outcome in League of Women Voters be reconciled with Wilson, or was the Washington Supreme1073 Court simply anti-charter and the California appellate court pro-charter? Which has the correct perspective on charter schools? Which has the correct perspective on the courts’ role in adjudicating these questions?

2. What aspects of Washington’s charter statute render it unconstitutional?

3. Given the court’s rationale, does the state have any viable options for creating a charter system that complies with the constitution? Is the court’s reading of the constitution too rigid? Does it prevent the state from innovating in education? Is it inconsistent, on the one hand, to reason that the meaning of an adequate education must evolve with society, but other aspects of the education clause remain frozen?

3. Educational Outcomes

The rise of charter schools is partly explained by the public perception that they outperform public schools and deliver high-quality education. Many charters do, in fact, deliver excellent educational opportunities. For instance, the Knowledge Is Power Program (KIPP) charter schools have reported impressive results, in large part by using the flexibility of the charter school model to deliver 60 percent more instructional time than traditional public schools. See generally Diane Ravitch, The Death and Life of the Great American School System: How Testing and Choice Are Undermining Education 135 (2010). Many students who remain in KIPP charter schools have gone from being several years behind in learning to performing well above grade level. KIPP, Independent Reports, http://www.kipp.org/results/independent-reports (last visited May 12, 2016). KIPP charter schools are not alone in their success. In Massachusetts (an already high academically performing state), charters schools held four of the top ten slots on the state’s eighth-grade math test in 2008. Top Scoring Schools on the 10th Grade MCAS, boston.com (2008), http://www.boston.com/news/special/education/mcas/scores08/10th_top_schools.htm. Nationally, 15 to 20 percent of charter schools significantly outperform public schools. Ctr. for Research on Educ. Outcomes, Multiple Choice: Charter School Performance in 16 States (2009).

The value these high-performing charter schools bring to the communities they serve cannot be overstated, but data suggest they are far from the norm. Many charter schools struggle to perform at levels comparable to public schools and frequently underperform significantly. Only a few national studies of charter schools have been completed, but when comparing similarly situated students in traditional public schools to charter schools, the studies have tended to find that students in charter schools underperform. The U.S. Department of Education studied the results of the National Assessment of Education Progress and found that charter school students underperformed regular public school students in fourth-grade reading, fourth-grade math, and eighth-grade math. U.S. Dep’t of Educ., Evaluation of the Public Charter Schools Program: Year One Evaluation Report (2000). The only area that charter schools performed on par with public schools on these measures was in eighth-grade reading. A 2009 national study by Stanford University researchers was even more pointed. The study found that more than 80 percent of charter schools perform the1074 same or worse than public schools. Ctr. for Research on Educ. Outcomes, supra. A full 37 percent of charter schools performed significantly worse than comparable public schools. Id.

Critics also charge that studies that present charter schools as high performing and better alternatives than traditional public schools often leave out important facts and rely on inaccurate comparisons. First, while it is true that inner city charter schools may often outperform nearby schools or their surrounding school district, it is an overstatement to claim that inner city charter schools are outperforming public schools in general. Ravitch, supra at 138-144. Likewise, even where studies show charter schools outperforming local public schools, the students enrolled in those charter schools are often demographically advantaged in comparison to the public school population and, thus, the higher performance is not easily attributable to the charter school. But see Ron Zimmer et al., Charter Schools in Eight States: Effects on Achievement, Attainment, Integration, and Competition (2009). For instance, charter schools frequently enroll substantially smaller proportions of special education and English Language Learner students than the schools in their surrounding communities. See generally Robert A. Garda, Jr., Culture Clash: Special Education in Charter Schools, 90 N.C. L. Rev. 655, 681-689 (2012). In addition, the fact that charter schools require affirmative effort by parents to enroll their children would tend to indicate that charter schools have student bodies with highly motivated students or parents who are predisposed toward higher achievement. Ravitch, supra at 144. In short, studies finding that charter schools are outperforming public schools tend to compare a motivated and more monolithic group of nondisabled students who speak English as a first language to a local population that includes students with lower levels of familial support, lower levels of motivation, learning disabilities, and language barriers. When the achievement of students in charter schools is compared to the achievement of demographically similar students in regular public schools, the most favorable scholarly appraisal of charter schools is that “none of the studies detects huge effects—either positive or negative” of attending a charter school. Tom Loveless & Katharyn Field, Perspectives on Charter Schools, in Handbook of Research on School Choice 11-12 (Mark Berends et al. eds., 2009) (reviewing all the research on charter schools).

Newer research, however, suggests that charter school performance may be improving. A research group that had previously produced negative results on charter schools reached a different conclusion in a new 2013 study. It found that “[c]ompared to their likely [traditional public school (“TPS”)] alternative, the average charter school student now gains an additional 8 days of learning each year in reading, compared to a loss of 7 days each year in the 2009 report. In math, students in 2009 posted 22 fewer days of learning; today, charter school students have equivalent levels of learning in math as their TPS peers.” Ctr. for Research on Educ. Outcomes, National Charter School Study (2013). A 2015 study on urban charter schools reached even stronger findings to this effect, Ctr. for Research on Educ. Outcomes, Urban Charter School Study Report on 41 Regions (2015), although these newer findings have come under critique for the assumptions built into the methodology. See Derek Black, Charter School Study of Student Achievement Draws Criticism from All Sides, Educ. Law Prof Blog, July 17, 2013. For1075 a further explanation of why charter school data is difficult to interpret and subject to misuse by both sides, see Jeffrey R. Henig, Spin Cycle: How Research Is Used in Policy Debates: The Case of Charter Schools (2008).

Regardless of which studies are most compelling, none demonstrate that charter schools are inherently inferior or superior. Both sides of the debate may overstate the data so as to make their larger point about charter schools’ quality or lack thereof. Moreover, even if charter school performance lags behind, it may not be a failing of charter school pedagogy or curriculum, as opponents might suggest. As the earlier materials indicate, many charter schools operate under several other disadvantages related to financing and facilities. Thus, underperformance in these charter schools may be partially related to the start-up and financing barriers they face. Likewise, many high-performing charters have the financial support and backing of foundations and communities that ensure they have resources and instruction that exceeds what is available in traditional public schools. Thus, their success is attributable to factors other than charter school status. The overall point may be that generalizing charter schools is inherently problematic because they vary so much both within and between states.

4. Civil Rights Concerns

The demographic differences between charter schools and public schools alluded to in the student achievement discussion also raise substantive legal concerns. As detailed in the first seven chapters of this casebook, public schools are prohibited from discriminating against various disadvantaged groups and, in some instances, have affirmative obligations toward disadvantaged students. Very early in the charter school movement, civil rights advocates stressed the need to ensure that charter schools understood and complied with their legal obligations. They also emphasized that, to the extent policymakers did not emphasize goals like diversity, integration, and equal access in charter schools, charter schools might become part of the problem rather than the solution. The following report argues that policymakers did not heed these warnings. As you read it, consider whether charter schools are exacerbating segregation or whether they are simply trying to provide the best education possible to the most needy students, who also just so happen to live in highly segregated neighborhoods.

Erica Frankenberg, Genevieve Siegel-Hawley & Jia Wang, Civil Rights Project, Choice Without Equity: Charter School Segregation and the Need for Civil Rights Standards

(2010)

As the country continues moving steadily toward greater segregation and inequality of education for students of color in schools with lower achievement1076 and graduation rates, the rapid growth of charter schools has been expanding a sector that is even more segregated than the public schools. We know that choice programs can either offer quality educational options with racially and economically diverse schooling to children who otherwise have few opportunities, or choice programs can actually increase stratification and inequality depending on how they are designed. The charter effort, which has largely ignored the segregation issue, has been justified by claims about superior educational performance, which simply are not sustained by the research. Though there are some remarkable and diverse charter schools, most are neither. The lessons of what is needed to make choice work have usually been ignored in charter school policy. Magnet schools are the striking example of and offer a great deal of experience in how to create educationally successful and integrated choice options.

Our November 2009 report showed a critical lack of basic civil rights policy in state charter legislation. Our 2008 report on magnet schools showed that a significant share of magnet school programs has a clear policy favoring integration and that those with such policies had better outcomes. [The] new administration has given priority to expanding charters[, but] has not seriously focused so far on insuring that they embrace civil rights policies or on the better educational experience of magnet schools in combining choice and integration. The Obama Administration’s intense pressure on financially desperate states to expand charters, or lose urgently needed federal funds, should not further intensify segregation, especially for African American students. Since the great majority of states have very small fractions of students in charter schools now and have not chosen to expand them substantially, this federal pressure must be accompanied by unambiguous accountability and civil rights standards.

Across the country, desegregation opportunities for black students reached their peak about two decades ago, around the same time the achievement gap reached its narrowest point. This reversal, especially losing much of the remarkable achievement of integration in the South, makes it particularly distressing that charter schools enroll a disproportionate share of black students and expose them to the highest level of segregation. Almost a third end up in apartheid schools with zero to one percent white classmates, the very kind of schools that decades of civil rights struggles fought to abolish in the South. Many have no policies for transporting students from their segregated neighborhoods. There are large concentrations of charter schools in some of the nation’s most hypersegregated metropolitan areas, including Chicago and Detroit, and they too often create the illusion of real choice without providing the slightest challenge to the color and class lines that usually define educational opportunity. In fact, they offer even more extreme race and class separation without evidence of providing higher quality schooling. Charter school proponents include many teachers and educators who believe in integrated education and who, I believe, would respond to a civil rights and educational equity challenge from the [federal government].

In the Southwest, which includes five of the eight states in which Latino students have traditionally been concentrated and the great center of Mexican immigration, the record of charter schools is particularly disappointing. The1077 states of the Southwest were found by the Supreme Court in 1973 to have a history of discrimination against Latinos that paralleled the discrimination against blacks in the South. The region has experienced very sharp increases in segregation of Latino students since the l970s, and it is usually segregation by both race and poverty, and sometimes by language as well. This triple segregation is educationally devastating in most cases. Students often have few choices of schooling that offers a better chance to graduate, be ready for college, and be prepared to learn, live and work in an extremely diverse society.

In this region, however, Latinos are actually substantially underrepresented in the charter school population, and it appears little attention is being given in charter schools to those needing the most help: the millions of English language learners who grow up in Spanish speaking homes and whose English is not strong enough for regular educational progress. Little attention is given to the legal responsibility of these schools to accept and provide appropriate instruction for English language learners. Many schools fail to even report how many such students they enroll, and the available statistics suggest that these students are severely underrepresented.

A worrisome pattern in the Southwest and in some localities elsewhere, such as North Carolina, is the overrepresentation of whites in charter schools. The West has 55% nonwhite students in its public schools region-wide. It would be very damaging to invest public money in schools that finance white flight from regular public schools and take with the departing white students, state and federal funding badly needed for the students left behind in even more segregated regular public schools. The fact that a number of these “white flight” schools do not report any students on free lunch suggests that they may be segregated by both race and class. During the civil rights era, it was held to be illegal to create new school districts that intensified segregation. Regardless of whether it would also be held to be illegal to create new separate segregated entities now, it is certainly shoddy educational and civil rights policy.

A particularly disturbing aspect documented in this report is that there has been a very severe failure to collect essential basic data about charter schools. [M]any schools report no free lunch students, meaning that they either fail to offer free lunch and thus effectively exclude poor kids, or do not feel that it is necessary to report these statistics. Yet research shows a very deep relationship between concentrated poverty and inferior educational opportunities and outcomes.

In a nation where one-fifth of all children are born into homes where the parents don’t speak English (the vast majority Spanish-speaking), and a tenth of all students are classified as English language learner (ELL) students, basic equity as well as federal civil rights law requires that charter schools welcome and provide needed educational services for this large group of students. There is a shocking lack of basic data on enrollment of ELL students in charter schools, even in the state with by far the largest ELL population, California. Where data is available, it appears that ELL students are seriously underrepresented. If that is true, it is essential to examine whether or not charters are fulfilling their legal and educational obligations to this very important group of students who experience extremely high dropout rates. The government should act1078 immediately to require this data at the school level from all charter schools, and should investigate evidence of the causes of severe under-representation.

There are fine charter schools and some are richly diverse. There are also, however, many charters that are neither successful nor diverse and offer false hope. In the long term, it would be better to convert those strong charter schools to relatively autonomous parts of public school systems, since charters often have trouble in management, finance, and succession of leadership. In any case, we should keep and reward such schools. State and federal agencies supporting charters should learn the lessons of those charter schools that attain diversity and turn them into requirements for other charters. Federal civil rights officials and education officials should work to develop minimum civil rights standards and make them part of charter school funding. When funding is offered for schools of choice, magnet and pilot schools should always be fully eligible to compete in addition to charter schools. If there is evidence that schools are being planned to create racially exclusive educational institutions that would obviously violate federal civil rights law, these schools should be investigated and challenged by civil rights agencies.

The charter movement has flourished in a period of retreat on civil rights. As the vision of a successfully integrated society with real opportunities for historically excluded groups of students to enter the mainstream is revived, so could this become a defining characteristic of charter schools. Federal policy should make this a condition for charter assistance and support help for all charters to become what the best ones already are.

The theory of charters is that they can offer something unique because they are autonomous and can be creative in offering distinctive and excellent educational programs. Previous administrations may have believed that charter schools were superior just because they were not part of traditional public school systems. There is no evidence for that proposition, but well implemented choice schools do offer important possibilities. [Future legislation] should give each of these forms of choice equal and fair treatment in federal funding competition and that each should be expected to meet the same civil rights and accountability standards. Many parents trapped in weak schools want a choice. We need to make certain that the choices are good ones, that they are fairly available to all, and that they provide, as much as possible, real paths into the mainstream of American society.

NOTES AND QUESTIONS

1. A common retort to charges that charter schools are increasing segregation is that civil rights advocates are missing the point because the first priority of charter schools is to deliver high-quality educational opportunities for inner city students and pursuing integration could result in fewer seats and opportunities for the students these advocates intend to help. Civil rights advocates respond that these students are being disadvantaged and deprived of the best education1079 possible because they are still confined to a high-poverty school. Whose position is the most compelling? Is there a middle ground?

2. Is comparing charter schools, which tend to be concentrated in inner cities, to public schools in general the correct comparison? To the extent that urban charter schools are more segregated by race and class than public schools, it is often a result of the voluntary choice of low-income minority students to enroll in them. Is their enrollment in these schools a response to the underlying problem of segregated and unequal schools in their communities and, thus, the problem is not charter schools but the public schools themselves? Does this make charter schools an indictment of segregated and unequal schools rather than an example of them?

3. A recent study funded by charter advocates suggests a more complicated set of facts and that the effects of charter schools vary significantly based on locality. In a study of charter schools in eight states, the authors found

no systematic evidence to support the fear that charter schools are skimming off the highest-achieving students. The prior test scores of students transferring into charter schools were near or below local (districtwide or statewide) averages in every geographic location included in the study. In terms of prior achievement, in most sites, the transferring students did not differ substantially from other students in the [traditional public schools (“TPSs”)] they left: In a few sites, they were slightly higher achieving than their former peers; in other sites, they were slightly lower achieving, and, in Ohio and Texas, they were much lower achieving than their former peers. White students, who constituted a minority of charter entrants in all sites, deviated from the general pattern somewhat: In most sites, white students entering charter schools were, on average, slightly higher achieving than the white students in their previous schools.

Transfers to charter schools did not create dramatic shifts in the sorting of students by race or ethnicity in any of the sites included in the study. In most sites, the racial composition of the charter schools entered by transferring students was similar to that of the TPSs from which the students came. There is some variation: Transfers to charter schools tend to marginally reduce racial integration in Philadelphia and in Texas while marginally increasing racial integration in Chicago. We find suggestive evidence that African American students are more likely to self-segregate: African American students transferring to charter schools moved to schools with higher concentrations of African American students in five of seven locales.

Ron Zimmer et al., Charter Schools in Eight States: Effects on Achievement, Attainment, Integration, and Competition (2009).

A study of North Carolina, however, revealed a very disturbing trend. Helen Ladd, Charles Clotfelter, and John Holbein studied change in charter and public school enrollments over time. By measuring change over time, they were able to compare charters to themselves and public schools to themselves, mooting claims of unfair comparisons. The data showed that North Carolina charter schools have become “whiter” over time and, during the same period, traditional public schools more heavily populated by students of color. Helen Ladd et al., The Growing Segmentation of the Charter School Sector in North Carolina (NBER Working Paper 21078, Apr. 2015).

4. Even if states do not generally place diversity or integration goals on charter schools, should states limit the creation of charter schools that might undermine voluntary integration efforts of school districts like those discussed in1080 the first chapter? In the context of mandatory desegregation orders, courts took steps to prevent transfers to neighboring school districts that would undermine integration of the subject school district. See, e.g., Lee v. Eufaula City Bd. of Educ., 573 F.2d 229, 235 (5th Cir. 1978).

5. If magnet schools share many of the advantages of charter schools, but not the problem of segregation, should public policy focus more on expanding magnet schools and less on charters? The federal budget for magnet schools in 2010 was just at $100 million. The federal budget for charter schools was over $250 million and steadily rising. Erica Frankenberg & Genevieve Siegel-Hawley, Choosing Diversity: School Choice and Racial Integration in the Age of Obama, 6 Stan. J. Civ. Rts. & Civ. Liberties 219, 244 (2010).

PROBLEM

Identify the charter school statutes in your state (or in a neighboring state if your state lacks one). In reviewing the statutory language, pay close attention to which level of government has the authority to grant a charter, the standard under which it decides whether to grant a charter, the oversight and regulation of charters once they are established, and any restrictions the state places on the number of charters, the rights of teachers within them, or who may attend the charter.

Is the state’s charter school legislation consistent with state constitutional obligations it may have in regard to education (as interpreted by the state supreme court)? Does the legislation set standards that, in effect, require the approval of most charter school applications, or does it set sufficiently strict or discretionary standards that would allow the chartering entity to routinely decline charter applications? Which approach is best? Does the legislation provide sufficient protections to ensure that charter schools do not exclude special needs students or become more racially isolated than the traditional public schools? If not, how could the legislation better address this issue?

5. Charter Schools and the Larger Educational Reform and Choice Movements

Martha Minow, Reforming School Reform

68 Fordham L. Rev. 257 (1999)

What is the problem that the current reforms seek to address? American public schools are commonly described as “in crisis,” or failing to generate adequate levels of achievement. Another persistent charge addresses the disparate quality of educational opportunities between cities and suburbs, between public and private, and across other familiar social divisions. The contemporary push for reforms thus mirrors longstanding, potentially conflicting aspirations for American schooling: quality and equality. Universally available inadequate schooling would offer a tragic sort of equality; thus far, however, society has1081 had far more success generating individual schools of high quality rather than widespread high quality schooling.

The new reforms gather under the banner of “choice.” Rather than assigning students to public schools based on the location of their residence or some other characteristic, choice proposals would let parents and guardians select a school. In so doing, they seek to generate competitive pressures to promote higher quality schooling overall. In addition, choice proposals are said to afford some measure of equality. Voucher plans are meant to grant to poor and low-income families some of the latitude for selecting schools already enjoyed by families with enough resources to move to high quality suburban districts or to opt for private schools. Charter plans, offering resources to entrepreneurial groups interested in running innovative public schools, are intended to offer high quality options within the public system. Vouchers and charters also risk perpetuating inequality by excluding and segregating children with special needs, skimming from public schools those families motivated enough to take advantage of voucher and charter programs, and diverting resources from the project of improving the entire public school system.

In some respects, choice reforms try to redress failures of the last wave of school reform, the law-driven equality movement. Starting with racial desegregation, the push for equality expanded to gender equity, education rights for children with disabilities, bilingual and bi-cultural programs for English-language-learners, school finance reform, and even equal access for religious as well as non-religious student activities in public school settings. Each of these efforts reflects an underlying impetus to ensure equal opportunities for individual students, regardless of their race, gender, disability, linguistic and national background, economic class, or religion. Another way to perceive these reforms is to see them as extensions into our schools of the deep social struggles over group status and equality that pervade other sectors of the society. Under either formulation, these equality-based reforms absorbed enormous energy and dramatically reshaped schools and school practices around the country—with results both admirable and less than admirable.

Specific critiques of versions of school desegregation, special education for children with disabilities, school finance plans, bilingual education, and other equality reforms repeatedly appear in contemporary debates over reform. Yet the choice movement most immediately affects the equality reforms by rejecting their central features: centralized student assignment and bureaucratic compliance mechanisms. It may be coincidence, but the choice movement urges greater parental and guardian control over where and with whom each child will be educated after decades of desegregation orders and following more recent efforts to include children with disabilities in mainstream classrooms. Voucher and charter programs do not focus on either specific equality initiatives or their categorical approaches. Racial desegregation, school finance litigation, special education, and bilingual education may be once proud names of prior school reforms, but now they often are blamed, directly or indirectly, for the bureaucratization, fragmentation, and misallocation that needs redress.

Will today’s reforms themselves generate the pressing need for future reforms twenty or thirty years hence? I worry that the choice movement will1082 accelerate the already zany tendency noted by Linda Darling-Hammond, a wise observer of schools, who commented, “[s]chools chew up and spit out undigested reforms on a regular basis. This creates a sense within schools that whatever the innovation, ‘this too will pass’—and that it probably should.” Often it is difficult to evaluate education reforms because they come fast and furiously, with teachers and administrators sometimes participating and sometimes resisting. Schools are littered with the carcasses of partially or wholly abandoned school reforms. We have had school-based budgeting, computer-based learning, whole language reading, and back-to-basics. More recently, the standards movement has called for high expectations and the frequent use of standardized evaluations. It oversimplifies matters to suggest that new school reforms simply react to old ones. Yet the new reforms both implicitly and explicitly reject the older methods. In simple terms, the new reforms emphasize competition and standards, choice and incentives. The older efforts, framed by rights and remedies, focused on equality and fairness. The new reforms include valuable strategies but also faulty assumptions and dangers. The old reforms generated cumbersome bureaucracies and sometimes counterproductive court orders, but also provided fundamental values and protections.

Can we construct reform not by reacting against a prior wave, but instead by building upon it? Can we challenge what it means to reform schools by reforming reform? The very phrase, “reforming reform,” is gaining currency. It appears in contemporary efforts to fix what seems to have gone wrong with campaign finance reforms, Eastern European democratization, welfare reform, juvenile justice reform, bankruptcy reform, as well as school reform. Yet to be more than just another round of change, reformed reforms must anticipate what are usually the unanticipated consequences of the fresh turn of reforms. This can be done without waiting until current initiatives prompt still another demand for starting anew. It means starting with a sober evaluation of the claims and assumptions of the new reform movement. At the very least, this will reduce a new round of false promises and disappointments. It also means resisting the temptation to neglect goals that remain important because of the underrealization of other goals. Reforming reform involves learning to build constructively on the past while putting in place the capacity to learn from new initiatives.

For school reform, the relationship between equality and quality deserves sustained and simultaneous attention. Equality reforms hit the barriers of reaction, such as “white flight” in the face of desegregation orders and English-only referenda that have halted bilingual education in some communities. In trying to create remedies for unequal education along the lines of race, gender, language, disability, and financial inputs, the equality reforms also confronted the basic difficulties in elevating the quality of instruction and educational experiences. It makes sense, therefore, for current reforms to embrace the goal of quality through a combination of competition through choice mechanisms, and high expectations through standards. Yet the new reforms expose children to new risks of inequality by leaving some students in dismal existing schools and by making crucial to the selection of children’s schools the parents’ and guardians’ motivation and knowledge—qualities that are most certainly not equally distributed.

1083

In hopes of preventing yet another reform movement’s demise and facile replacement by a similar successor, I here explore the limitations of both the choice and equality reforms. I identify potential common ground and synergies of present and past school improvement struggles. I will end by suggesting ways that legislators and other public bodies can craft choice reforms that sustain the commitments to both equality and quality.

I. The Choice Movement

The movement for educational choice may seem modest or almost marginal because it often involves small-scale experiments. Yet actually, the choice movement involves a radical challenge to the common school ideal that generated public schools and compulsory schooling from the nineteenth through the early part of the twentieth century. As Seymour Sarason recently observed, “charter schools rest on a devastating critique of the present system because it implies that for a school meaningfully to innovate to achieve more desirable outcomes, it must be free of the usual rules, regulations, and traditions of a school system.” If real innovation and desirable results are possible only for schools that diverge from the public school system, then the system itself is the problem. The choice movement thus represents a dramatic departure from almost all prior school reforms. Rather than aspiring to create the “one best system” of public schooling that is run by experts for all children, charter, magnet, and voucher-based education proposals seek to multiply options, promote competition, and concentrate the mechanisms for evaluation and accountability in the hands of individual parents. In theory, some measure of comparability and public accountability would then be sought through general, even legislated, standards to set expectations and methods for assessment.

The public school system itself is seen as the main source of obstacles to innovation and good outcomes. Injecting private choice, coupled with public standards, into the schooling business is supposed to bypass the bureaucracies of mediocrity to produce higher quality schooling. Indeed, eight distinct assumptions underlie the pursuit of quality by those who advance choice: (1) Competition will produce accountability. Schools that successfully secure student enrollments and waiting lists will do so because they offer desirable educational programming. Successful schools will attract students and unsuccessful schools will lose theirs. (2) Successful schools will grow and unsuccessful schools will shut down or change. Growth will occur as managers expand the number of seats they control or they will generate copycats; bad schools will fail to attract enrollments, and will lose sufficient funding to stay open and/or lose their public charters. (3) Competition among schools will generate sufficient, relevant, and comparable information for assessing the quality of each school. (4) Parents and guardians will seek out or otherwise obtain sufficient, relevant, and comparable information to enable them to make informed, responsive, and responsible choices. At best, a sufficient number will do so to signal to others how to choose or to trigger the appropriate signals to competing schools. (5) Competition will cut through burdensome bureaucracy that stunts educational innovation and responsiveness to parents and students. (6) Competition will permit desirable1084 pluralism in teaching methods and in the kinds of values and traditions to be emphasized. (7) Competition structured in these ways is well suited to the enterprise of educating children and youth. (8) Other reform efforts have not worked, so more radical change is necessary, even if it involves abandoning features of the common school ideal.

Th[is] final assumption behind current choice proposals is that radical change is necessary because prior reform efforts have failed to remedy chronic school crises. This assumption is overstated, yet, in my view, it is the most compelling of the entire set. It is overstated in part because measuring the success and failure of past educational reforms is complex and highly politicized. Using some calipers, contemporary education in the United States has never been better. More kinds of students are taught more equitably in American schools today than thirty years ago, and there are higher graduation and literacy rates today. Students who would have dropped out in the past are now often helped by special programs.

On other measures, however, there are real signs of failure. American schools are more racially segregated today than thirty years ago. They also are marked by extreme disparities in expenditures and quality within and between states. For example, the state in which a student lives has a profound impact on math achievement. Student performance in the United States on many measures (notably math) falls below student performance elsewhere (notably Taiwan, Korea, and Russia), although U.S. students perform better on reading comprehension. Even ostensibly good schools widely underestimate their students’ capacities. Urban and rural children are at serious risk of stultifying years in nearly futile classrooms.

We must do better. If we cared only about economic competitiveness in a global environment, we would have to improve the educational opportunities and achievement of all students because there are no students we can afford to waste. And surely we should care about equality and individual opportunity as values in and of themselves, as expressions of deep national and constitutional commitments, and as minimal necessities for the dignity of each person.

The assumption that American schools are in crisis neglects the real achievement of what appears to be the most inclusive school system in the world. The assumption that the common school project should be abandoned neglects promising results with recent efforts to improve public school systems. It turns out to make a real difference if we focus on bringing up those with trouble learning, if we teach for mastery, and if we reject the view that some kids just cannot learn.

American schools overall do not hold young people to the same high expectations prevailing in schools in many other countries. American schools reflect gross disparities in expectations and resources across state lines, between cities and suburbs, and between social classes and races. Some of these disparities are the legacy of inequalities not redressed in the last wave of school reform. Some, to be frank, were exacerbated by that wave. The flight of middle-class and largely white families from cities to suburbs has a large place in the decline in the quality of urban schools and the striking contrast with many public suburban school systems.

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Whether the choice initiatives merely neglect equality goals or directly abandon them, they are flawed. Unless choice initiatives try to address the goal of equality along with quality, they will become illegitimate in the eyes of those still committed to the prior wave of reform. And they will likely generate yet another round of reforms precisely to remedy the new inequalities. If the new wave of reforms helps to generate drastic changes, to jump-start more profound efforts to raise educational opportunities for the least advantaged, and to raise expectations for all students, it could help to realize the still-unattained goal of equal opportunity and high quality schooling. But to get there, we need to consider both why those goals are as yet unachieved and what it would take for choice initiatives to help reach them.

IV. Steering the Waves

The biggest problem with the current phase of reforms is the familiar one of exaggeration. Exaggeration and simplification seem to have become simply part of the territory you have to know of mass democratic politics both in the statement of the problem—most schools are NOT in great or increasing crisis—and in the promise of solutions—quick, easy, and painless. We should know better than to believe recycled themes that can be discerned in almost all the waves of past school reform. Excessive claims seem necessary to get the lift and buoyancy needed for movement. But puffed up claims are waiting to be punctured.

What if we tried to mobilize around reforming school reform? Then we would talk of the costs of trying and discarding reforms that litter the lives of children. We would criticize new and prior reforms not as part of the perpetual puncture game, but as part of a demand for honest assessments of the mixed picture of the present and the mixed promises of any given initiative. School choice proposals admirably generate energy, initiative, creativity, and resources. Let us solicit new entrepreneurs to schools and substantial donations to end business as usual; let’s build high expectations for all children, and demand accountability of parents as well as school administrators. We also should acknowledge the limitations of past equality reforms. But we must not abandon either equality or the commitment to free, high quality education for all children. The challenge is not to shift schools into the private frame of markets, but to build the benefits of choice and competition into the public frame. The goal is not to get every kid into a private school, but to make all schools the kinds of places that give every kid the best possible fighting chance. The goal is to steer the wave rather than watch it crash across and inundate prior dreams.

In my view, building on the best of the past and the most promising features of school choice means expanding charter schools rather than vouchers for private schools. Charter schools remain within the public system. Therefore, they remain more likely to be tied to the mission of the public schools. They also can be encouraged to share information about successes and failures. Technical assistance can and should be available so that each individual school does not have to invent its own solutions to predictable start-up problems.

Even charter schools have incentives, however, to skim talented students who have active parents while abandoning others to less desirable schools.1086 Charter schools can and should be bound by the same admissions guidelines applicable to any other public school; preferably, charter schools should select randomly from the pool of those students who apply. Guidelines mean regulation, bureaucracy, and administration, but the entrepreneurship stimulated through charter schools can assist the development of better guidelines and more effective regulation. Just as industries now participate in negotiating over the specific details of environmental and safety regulations to produce more effective but less onerous rules, individual schools could participate in designing the means, but not the ends, of school regulations promoting equality and quality. Voucher plans also could be brought within this regulatory process to promote equality, although many private schools then would likely decline to participate.

The excitement and radical reconsideration opened by choice initiatives should be tapped to enlarge the range of good choices available to the most disadvantaged families. If residential segregation by race and class produces patterns of increasing school segregation, then genuine choice programs must transcend geographic and district borders. Cross-district choice programs and incentives to help suburban schools make room for urban students could make the promises of choice more genuine. So would college and university direct engagement in the tasks of supporting and mentoring classroom teachers, generating rich educational experiences for young children, and aiding in the collating and dissemination of crucial data.

School reform is always a symbolic as well as a practical fight. Schools afford an arena for fighting about what kind of society we should be, how the old and new generations should relate, whether commerce should govern democracy or democracy shall govern commerce, and how individual freedoms should be rendered compatible with the common good. It is imperative that the new round of school fights center as much on the symbols of inclusion and equality as upon the rhetoric of individualism and quality. These values need one another so that the whole is at least as worthy as the sum of the parts, if not perhaps more so.

School reform traditionally chews up and spits out undigested initiatives. What if school choice reforms afforded the occasion for building on the past while undertaking bold experiments. What if we recognized, as Audre Lorde put it, that “[w]e have the power those who came before us have given us, to move beyond the place where they were standing.” We must keep our commitments, if not quite our heads.

NOTES AND QUESTIONS

1. Why are new educational reforms constantly touted and policymakers always willing to alter public education? Is school choice, including vouchers and charters, just another passing fad, or is there reason to believe it will have staying power?

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2. Have equality reforms failed? If so, in what ways and why? Do choice reforms, including charter schools, have the potential to fare better? Can choice and charters transform the entire public education system, or can they operate only at the margins? Minow suggests that rather than throwing away old reforms related to integration and finance equity we should build on them. Are our schools in need of radical change, or do we need to redouble our efforts at equality and integration? Are segregation and inequality intractable and, thus, we must pursue the best available options, such as choice and charters?

3. Minow notes that choice eschews one of the central tenants of many equality reforms: central student assignment policies. James Ryan, however, has argued that charter schools and other choice programs can be important elements of an integration strategy. James E. Ryan, Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America 16, 286-291 (2010). Choice programs, including charter schools, create the opportunity to integrate schools across district lines and metropolitan areas, and are more likely to garner political support than traditional desegregation techniques. Others like Minow have agreed with Ryan, although his premise is not without its skeptics. See, e.g., Wendy Parker, The Failings of Education Reform and the Promise of Integration, 90 Tex. L. Rev. 395 (2011) (book review of Ryan, supra).

4. Minow lists eight assumptions behind the notion that choice will deliver quality educational opportunities. Is each assumption sound?

5. Do choice programs accept the possibility that large numbers of children will not get access to quality education and, as a consequence, be left behind? If so, are choice programs inconsistent with the notion of a public education system and the national imperative to create a globally competitive workforce?

B. VOUCHERS

1. Legal Constraints

As Minow discusses in her article, vouchers are another important aspect of the choice movement. Voucher programs are designed primarily to allow students who cannot otherwise afford to attend a private school to do so. Through a voucher program, the state pays a portion, or all, of a student’s private school tuition. Voucher programs are touted as exit options for students trapped in failing inner city schools. They, however, have not been nearly as politically popular as charter schools, for several of the reasons that Minow identifies. Vouchers have also been beset by more significant legal challenges than charter schools. As discussed in the chapter on religion and its coverage of Zelman v. Simmons-Harris, 536 U.S. 639 (2002), many challenged voucher programs as impermissible support of religion because students disproportionately use the vouchers to enroll in private religious schools. The Supreme Court upheld the voucher program in Zelman, reasoning that a state law allowing students to use vouchers at religious schools, among various other secular schools, amounts to1088 nondiscrimination against religion, not affirmative support of it. Some state courts, however, have reasoned differently under their own state law principles of separation of church and state. Even if vouchers create no problem of separation of church and state, the next case reveals that vouchers are subject to some of the same constitutional education clause challenges that were levied against charter schools.

Bush v. Holmes

919 So. 2d 392 (Fla. 2006)

Pariente, C.J.

The issue we decide is whether the State of Florida is prohibited by the Florida Constitution from expending public funds to allow students to obtain a private school education in kindergarten through grade twelve, as an alternative to a public school education. The law in question authorizes a system of school vouchers and is known as the Opportunity Scholarship Program (OSP).

Under the OSP, a student from a public school that fails to meet certain minimum state standards has two options. The first is to move to another public school with a satisfactory record under the state standards. The second option is to receive funds from the public treasury, which would otherwise have gone to the student’s school district, to pay the student’s tuition at a private school. The narrow question we address is whether the second option violates a part of the Florida Constitution requiring the state to both provide for “the education of all children residing within its borders” and provide “by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education.” Art. IX, §1(a), Fla. Const.

As a general rule, courts may not reweigh the competing policy concerns underlying a legislative enactment. However, as is equally self-evident, the usual deference given to the Legislature’s resolution of public policy issues is at all times circumscribed by the Constitution. We make no distinction between a small violation of the Constitution and a large one. Both are equally invalid. Indeed, in the system of government envisioned by the Founding Fathers, we abhor the small violation precisely because it is precedent for the larger one.

Our inquiry begins with the plain language of the second and third sentences of article IX, section 1(a) of the Constitution. The relevant words are these: “It is…a paramount duty of the state to make adequate provision for the education of all children residing within its borders.” Using the same term, “adequate provision,” article IX, section 1(a) further states: “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.” For reasons expressed more fully below, we find that the OSP violates this language. It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not “uniform” when1089 compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.

A. The State’s Obligation Under Article IX, Section 1(a)

This Court has long recognized the constitutional obligation that Florida’s education article places upon the Legislature: “Article XII, section 1, constitution [the predecessor to article IX, section 1] commands that the Legislature shall provide for a uniform system of public free schools and for the liberal maintenance of such system of free schools. This means that a system of public free schools…shall be established upon principles that are of uniform operation throughout the State and that such system shall be liberally maintained.” State ex rel. Clark v. Henderson, 188 So. 351, 352 (1939). Currently, article IX, section 1(a), which is stronger than the provision discussed in Henderson, contains three critical components with regard to public education. The provision (1) declares that the “education of children is a fundamental value of the people of the State of Florida,” (2) sets forth an education mandate that provides that it is “a paramount duty of the state to make adequate provision for the education of all children residing within its borders,” and (3) sets forth how the state is to carry out this education mandate, specifically, that “[a]dequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.”

B. Article IX, Section 1(a): A Mandate with a Restriction

In the 1999 legislation creating the OSP, the Legislature recognized its heightened obligation regarding public education imposed by the 1998 amendment to article IX, section 1: “(1) FINDINGS AND INTENT.…The Legislature recognizes that the voters of the State of Florida, in the November 1998 general election, amended §1, Art. IX of the Florida Constitution so as to make education a paramount duty of the state. The Legislature finds that the State Constitution requires the state to provide the opportunity to obtain a high-quality education.” (1999). In 2002 legislation that renumbered the statutory provisions dealing with education, the Legislature made essentially the same finding in language that more closely tracked the language of article IX, section 1(a): “The Legislature finds that the State Constitution requires the state to provide a uniform, safe, secure, efficient, and high-quality system which allows the opportunity to obtain a high-quality education.” Although these statements purport to fulfill the constitutional mandate, the legislative findings omit critical language in the constitutional provision. In neither the 1999 nor the 2002 version of the OSP legislation is there an acknowledgment by the Legislature that the state’s constitutional obligation under article IX, section 1(a) is to provide a “uniform, efficient, safe, secure, and high quality system of free public schools.”

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The constitutional language omitted from the legislative findings is crucial. This language acts as a limitation on legislative power.

The second sentence of article IX, section 1(a) provides that it is the “paramount duty of the state to make adequate provision for the education of all children residing within its borders.” The third sentence of article IX, section 1(a) provides a restriction on the exercise of this mandate by specifying that the adequate provision required in the second sentence “shall be made by law for a uniform, efficient, safe, secure and high quality system of free public schools.” The OSP violates this provision by devoting the state’s resources to the education of children within our state through means other than a system of free public schools.

We agree with the trial court that article IX, section 1(a) “mandates that a system of free public schools is the manner in which the State is to provide a free education to the children of Florida” and that “providing a free education…by paying tuition…to attend private schools is a ‘a substantially different manner’ of providing a publicly funded education than…the one prescribed by the Constitution.”

Although parents certainly have the right to choose how to educate their children, article IX, section (1)(a) does not, as the Attorney General asserts, establish a “floor” of what the state can do to provide for the education of Florida’s children. The provision mandates that the state’s obligation is to provide for the education of Florida’s children, specifies that the manner of fulfilling this obligation is by providing a uniform, high quality system of free public education, and does not authorize additional equivalent alternatives.

C. Diversion of Funds from the Public Schools

The Constitution prohibits the state from using public monies to fund a private alternative to the public school system, which is what the OSP does. Specifically, the OSP transfers tax money earmarked for public education to private schools that provide the same service-basic primary education. Thus, contrary to the defendants’ arguments, the OSP does not supplement the public education system. Instead, the OSP diverts funds that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provision for the education of children.

Section 1002.38(6)(f), Florida Statutes (2005), specifically requires the Department of Education to “transfer from each school district’s appropriated funds the calculated amount from the Florida Education Finance Program and authorized categorical accounts to a separate account for the Opportunity Scholarship Program.” Even if the tuition paid to the private school is less than the amount transferred from the school district’s funds and therefore does not result in a dollar-for-dollar reduction, as the dissent asserts, it is of no significance to the constitutionality of public funding of private schools as a means to making adequate provision for the education of children.

Although opportunity scholarships are not now widely in use, if the dissent is correct as to their constitutionality, the potential scale of programs of this1091 nature is unlimited. Under the dissent’s view of the Legislature’s authority in this area, the state could fund a private school system of indefinite size and scope as long as the state also continued to fund the public schools at a level that kept them “uniform, efficient, safe, secure, and high quality.” However, because voucher payments reduce funding for the public education system, the OSP by its very nature undermines the system of “high quality” free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida. The systematic diversion of public funds to private schools on either a small or large scale is incompatible with article IX, section 1(a).

D. Exemption from Public School Uniformity

In addition to specifying that a system of free public schools is the means for complying with the mandate to provide for the education of Florida’s children, article IX, section 1(a) also requires that this system be “uniform.” The OSP makes no provision to ensure that the private school alternative to the public school system meets the criterion of uniformity. In fact, in a provision directing the Department of Education to establish and maintain a database of private schools, the Legislature expressly states that it does not intend “to regulate, control, approve, or accredit private educational institutions.” This lack of oversight is also evident in section 1001.21, which creates the Office of Private Schools and Home Education Programs within the Department of Education but provides that this office “ha[s] no authority over the institutions or students served.”

Further, although the parent of a student participating in the OSP must ensure that the student “takes all statewide assessments” required of a public school student, the private school’s curriculum and teachers are not subject to the same standards as those in force in public schools. [Public school teachers must have bachelor’s degrees, obtain particular grade point averages, pass certification standards, and submit to background checks, whereas private school teachers do not. Public schools must teach and test students based on a state mandated curriculum, whereas private schools may teach and test students as they see fit.]

In these respects, the alternative system of private schools funded by the OSP cannot be deemed uniform in accordance with the mandate in article IX, section 1(a).

E. Other Provisions of Article IX

Reinforcing our determination that the state’s use of public funds to support an alternative system of education is in violation of article IX, section 1(a) is the limitation of the use of monies from the State School Fund set forth in article IX, section 6. That provision states that income and interest from the State School Fund may be appropriated “only to the support and maintenance of free public schools.” Reading sections 1(a) and 6 of article IX in pari materia evinces1092 the clear intent that public funds be used to support the public school system, not to support a duplicative, competitive private system.

Conclusion

In sum, article IX, section 1(a) provides for the manner in which the state is to fulfill its mandate to make adequate provision for the education of Florida’s children—through a system of public education. The OSP contravenes this constitutional provision because it allows some children to receive a publicly funded education through an alternative system of private schools that are not subject to the uniformity requirements of the public school system. The diversion of money not only reduces public funds for a public education but also uses public funds to provide an alternative education in private schools that are not subject to the “uniformity” requirements for public schools. Thus, in two significant respects, the OSP violates the mandate set forth in article IX, section 1(a).

NOTES AND QUESTIONS

1. The legal theory to challenge Florida’s voucher program was similar to the challenge to the charter school statutes in California and Washington. In what ways are voucher programs, as a practical matter, similar to charter schools? In what ways are they different? Are these similarities and distinctions of constitutional significance? Does the court in Bush read the constitutional provisions too narrowly?

2. Insofar as regular public schools are the default public school system, is there any difference between the diversion of public money through vouchers and the diversion of public money to charters? In Wilson, the California appellate court reasoned that charters are public schools and are part of the system, but they are also contractors with the state and they may subcontract out the educational program to for-profit institutions. Does that make the difference between vouchers and charters one of form rather than function, or are there meaningful differences between the two?

3. Florida’s constitution includes a mandate of quality and uniformity. The court focuses on the latter, but insofar as voucher programs do not entail quality controls or monitoring of the receiving school, do vouchers raise constitutional quality concerns?

4. The court faults the voucher program because delivering education through varying private schools is inconsistent with the mandate of uniformity. Are public schools any more uniform in their quality and resources? If the lack of quality in inner-city schools is a primary motivating factor of students who opt for a voucher program, is a voucher effectively a remedy to the constitutional violations in their schools? Advocates have brought numerous suits against the state of Florida, charging that the inadequacies in their schools were a violation of the state constitution. See, e.g., Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996); Haridopolos v. Citizens for Strong1093 Schs., Inc., 81 So. 3d 465, 466 (Fla. Dist. Ct. App. 2011); Sch. Bd. of Miami-Dade Cty. v. King, 940 So. 2d 593, 595 (Fla. Dist. Ct. App. 2006).

As discussed in the disability chapter, when a public school fails to provide appropriate educational opportunities to students with disabilities, they can be required to reimburse parents for tuition at private schools that can provide such an education. Prior courts in Florida have found that this diversion of public money to private schools does not violate the constitution. How is the special education context different? Are there potential amendments to the voucher program that would make it more similar to special education and thus constitutional?

5. Plaintiffs in Owens v. Colorado Congress of Parents, Teachers & Students, 92 P.3d 933 (Colo. 2004), also raised education clause challenges to a voucher program. The program in Owens was more narrowly tailored than the program in Florida. The only locations where vouchers would necessarily be available were in persistently low-performing schools. Even there, the statute included caps on the percentage of students in a district that could participate in the voucher program. The court, nonetheless, struck down the voucher program, although it did so under a different rationale than Bush. Colorado is one of six states whose constitution contains a local control provision, which vests certain constitutional authority in local districts. Thus, they are not mere delegates of the state, but, in some matters, are its equal. The court reasoned that vouchers divested local districts of their constitutional authority over instruction and misdirected locally raised tax revenues to private schools. See also Bd. of Educ. of Sch. Dist. No. 1 in City & Cty. of Denver v. Booth, 984 P.2d 639 (Colo. 1999) (recognizing the constitutional requirement for local control in Colorado). Overall, however, the results are mixed. In addition to Florida and Colorado, Nevada has declared its voucher program incompatible with the state’s commitment to regular public education. Lopez v. Schwartz, No. 15 OC 00207 1B, Order Granting Motion for Preliminary Injunction (1st Judicial District Court of Nevada, Jan. 11, 2016). But North Carolina, Ohio, and Wisconsin have upheld their voucher programs against education clause challenges. Hart v. State, 774 S.E.2d 281 (N.C. 2015); Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999) (Establishment Clause issues appealed to U.S. Supreme Court); Davis v. Grover, 480 N.W.2d 460 (Wis. 1992). A distinct set of cases have challenged vouchers on other grounds, arguing that state constitutional amendments and laws prohibiting state aid to religious organizations prohibit vouchers for religious schools. See, e.g., Cain v. Horne, 202 P.3d 1178 (Ariz. 2009); see also Clint Bolick, The Constitutional Parameters of School Choice, 2008 B.Y.U. L. Rev. 335, 341-345 (discussing “Blaine” amendments and their potential limits on voucher programs). For a further discussion of those claims, see Chapter 9.

2. Educational Outcomes

As discussed with charter schools, advocates for choice frequently assert or assume that students will achieve at higher levels in schools they choose. The following article summarizes the data on point. The authors of this article find1094 even less support for vouchers than charters. The sample size for vouchers, however, is much smaller and thus harder from which to draw conclusions. Regardless, the weaker social science support for vouchers may also play a causative role in the decline of political support for vouchers.

Christopher Lubienski & Peter Weitzel, The Effects of Vouchers and Private Schools in Improving Academic Achievement: A Critique of Advocacy Research

2008 BYU L. Rev. 447 (2008)

Large-scale datasets allow researchers to control for many demographic and school-level factors known to affect achievement. However, such studies are unable to account for the built-in selection bias arising from the fact that some families choose private schools, while others do not—patterns indicating that there may be some “unobservable” qualitative differences between these two populations (e.g., motivation, commitment) that cannot be captured or controlled by researchers. Consequently, many researchers point to the possibility of constructing quasi-experimental studies of school effects to approximate randomized medical experiments, thereby controlling for unobservable factors. For example, when applicants for voucher programs exceed the number of slots available, seats can be assigned through lotteries or other randomizing techniques. This approach creates an experimental group randomly assigned a voucher and a control group randomly denied a voucher—two groups that can be assumed to be similar on all other observable and unobservable characteristics.

Interestingly, research on the achievement effects of voucher programs has generally not produced a clear consensus regarding student performance, while voucher advocates using randomization have tended to show benefits of the programs (although those studies have been heavily contested on methodological grounds). Publicly-funded voucher plans are a lightning rod for policy and advocacy battles, and not surprisingly, the older programs in the industrial cities of Milwaukee, Wisconsin and Cleveland, Ohio have attracted the most attention from researchers.

[The Wisconsin state legislature built an evaluation component into its voucher program, the official evaluations of which found no significant private school advantage. A follow-up study by Harvard’s Program on Education Policy and Governance (PEPG), however, demonstrated positive private school effects for voucher students, but the study was criticized as having methodological flaws. A third study “found no gains in reading and significant gains in math.”] A similar debate unfolded around Cleveland’s voucher program, where official evaluations initially found little or no advantages for students using vouchers. Subsequent re-analyses by PEPG found significant gains for voucher students, but were contested on methodological grounds. In addition, most recent studies find little advantage, or indicate the possibility of a negative effect of using a voucher.

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In general, no clear consensus has emerged regarding evidence of academic gains or losses due to the use of private school vouchers. If any general finding is available, it is that positive academic outcomes stemming from voucher programs are modest at best, do not extend to most groups, and certainly do not rise to the level anticipated by the early optimistic assumptions advancing such programs. Nonetheless, many voucher advocates see an “emerging consensus” in the research using randomized models indicating that vouchers are effective at boosting student achievement. Yet, on closer inspection, it appears that such a consensus is on rather tenuous ground. In fact, the best and most recent evidence suggests that the “private school effect” on which voucher programs are premised is unsubstantiated.

[The authors find that those supporting vouchers selectively sight only to favorable research, which tends to be low in quality, and either ignore or mischaracterize favorable research.]

[T]he most recent generation of large-scale studies using nationally representative data suggests quite a different pattern with regard to the relative performance and effectiveness of public and private schools.

The National Assessment of Educational Progress (NAEP) is often referred to as “The Nation’s Report Card” because it is the only nationally representative, on-going assessment of American academic achievement in various subject areas. In 2003, NAEP assessments were administered to over 190,000 fourth graders from 7485 public, private, and charter schools and to over 153,000 eighth graders in 6092 schools. As expected, raw score comparisons found that private school students, on average, scored higher than public school students. The real question raised by this research, however, was whether differences in test scores between various school types—public schools or Catholic and other private schools—were primarily due to differences in the student populations served by these different sectors.

After the raw data were released by the federal government, two separate research teams independently conducted multi-level analyses of the raw NAEP data. After controlling for differences in demographic and location, the [federally funded study published in a peer-reviewed journal] found private school students to be performing at a level significantly beneath their public school counterparts in grade four. In grade eight, public schools outperformed Catholic and conservative Christian schools and were essentially similar to Lutheran and other private schools. In a similar study of NAEP data commissioned and heavily reviewed by the federal government, researchers at the Educational Testing Service used somewhat different assumptions and variables, but largely replicated the [federally funded study’s] findings.

The robust NAEP results consistently indicate that demographic differences between public and private schools easily account for the relatively high raw scores in private schools. After controlling for demographic differences, no private school means were higher than public school means to any statistically significant degree. Moreover, particularly at grade four, public schools actually scored significantly higher than private schools.

These large, nationally representative datasets offer unrivalled insights into the performance and effectiveness of different types of schools in the United1096 States. The findings regarding private and public school achievement, although notable, are not entirely without precedent. Despite common perceptions and claims of a consensus around this issue, several previous studies have called into question claims of a general, positive private school effect. The findings in these large studies regarding the relative effectiveness of public schools are significant in terms of their policy implications. Voucher programs are based specifically on the notion that private schools bestow an advantage on students in terms of achievement gains, especially when compared to public schools. That is, the idea of moving students from public to private schools to increase achievement is contingent upon the assumption that private schools are more effective at boosting achievement. However, the presumed panacea of private-style organizational models—the private-school advantage—is not supported by the more comprehensive data on student achievement. These data, at the very least, suggest significant reasons to be suspicious of consensus claims based on small-scale studies of non-representative data conducted by policy advocates.

There are many reasons one could support school choice, but evidence of inherently higher student achievement in private schools may not be among them.

NOTES AND QUESTIONS

1. What does the research indicate about the purported superiority of private schools? If they are not qualitatively better, what explains their higher achievement? If private schools are not necessarily qualitatively better than public schools, why do so many parents send their children to private schools?

2. If private schools are not better than public schools, why might students attending those private schools with vouchers nonetheless outperform their peers in public school?

3. The premise behind charter schools and voucher programs is that they bring competition to the public education system and competition produces better educational outcomes. Private schools are already subject to competition and possess the educational flexibility that reformers claim is necessary to improve public schools (hence the idea of relatively autonomous charter schools). If, however, students attending private schools through vouchers do not outperform similarly situated public school students, does the case for bringing competition to public schools, including through charter schools, fail?

4. A leading scholar in the area suggests a different approach to vouchers. Based on a child-centered approach, James Dwyer argues that the state has an obligation to ensure the quality of children’s education regardless of the setting in which they receive it. He emphasizes that not all private schools are well resourced and, to ensure quality education for the students enrolled in them, the state should make vouchers or public funding more widely available. In exchange for additional vouchers or funding, Dwyer would impose greater regulation on private schools, as opposed to current voucher programs that impose almost no requirements on private schools. James G. Dwyer, Vouchers1097 Within Reason: A Child-Centered Approach to Education Reform (2002). If Dwyer’s thesis of underresourced private schools is correct, the less than impressive overall performance of voucher programs and private schools may be misleading.

5. Are there reasons other than higher academic quality, or the lack thereof, that vouchers should be made available to students? What role should vouchers play in public education in the future?

3. Politics

James Forman, Jr., The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics

54 UCLA L. Rev. 547 (2007)

In Zelman v. Simmons-Harris, the U.S. Supreme Court upheld the constitutionality of a Cleveland program that provided school vouchers to low-income parents seeking private school alternatives for their children. Under Cleveland’s voucher plan, parents could theoretically use the voucher at religious schools, secular private schools, or suburban public schools. But few secular private schools and no suburban public schools chose to join the program. So, for most parents, the voucher option was a religious private school. Voucher opponents used this fact to argue that the plan amounted to state funding of religion and thus violated the First Amendment’s Establishment Clause. Zelman rejected this challenge, and the opinion was widely heralded as of great historical significance.

Yet, in the years since Zelman, school vouchers have made little political headway. They have been proposed in a variety of cities and states, but have overwhelmingly been rejected. This is just as true in states run by Republicans as in those led by Democrats. Since Zelman, only three jurisdictions have adopted voucher plans, while proposals have failed in over thirty-four states.

It is tempting to think that vouchers simply need more time to gain popularity—after all, Zelman was only decided five years ago. While that is surely part of the explanation for the slow growth of vouchers, it is not the only one. We can see this by comparing the relatively slow pace of voucher expansion to the rapid growth of two other forms of school choice that exploded in the preceding decades. Like vouchers, home schooling and charter schools were new innovations at one point. But they both grew much faster. In 1983 only four states had laws that explicitly permitted home schooling; ten years later all fifty states had such laws. Charter schools have had a similarly rapid rise. The nation’s first charter schools were authorized in Minnesota in 1991; by the 2004-05 school year, there were approximately 4000 charter schools in forty states and the District of Columbia.

Why have school vouchers failed to garner the support that so many assumed would follow the Court’s decision in Zelman? To answer this question requires looking back at the evolution of the school voucher movement.1098 I suggest that the story is one of religion, race, and politics. It is a story of religion because religious conservatives—especially Christian conservatives—once championed school vouchers and other forms of private school choice as their leading education priority. Christian conservatives were drawn to vouchers because they sought schools that would reinforce their religious beliefs and values—what I call the “values claim” for vouchers. The values claim was central for most of the history of the voucher movement.

This is a story about race, too, for the leaders of the voucher movement made a disciplined effort to define school vouchers as part of the struggle for racial justice and educational opportunity. In so doing, they developed an alternative rationale for school vouchers—what I call the “racial-justice claim”—which emphasized the right of low-income and minority parents to send their children to academically rigorous private schools. The racial-justice claim had political and legal advantages for the voucher movement. It attracted an additional constituency—black parents—and made voucher plans less vulnerable to Establishment Clause challenges. [H]owever, jettisoning the values claim that appealed to religious conservatives may have weakened the post-Zelman political movement for vouchers.

This is also a story about politics, for by the time Zelman was decided, a political consensus had emerged emphasizing the importance of “accountability” in education. Best captured by the federal No Child Left Behind legislation, the new politics of accountability increased state and federal oversight over individual schools and districts. For schools, it means less local control, more tests, stricter standards, and various other regulations imposed by governing authorities. Although No Child Left Behind does not govern private schools receiving vouchers, there is growing pressure for increased government oversight of those schools. This threat of governmental regulation is anathema to conservative Christian educators, driving them further away from a school voucher movement about which they were already increasingly ambivalent.

In the early twentieth century, the idea of giving parents public money to pay religious school tuition was advocated mainly by Catholics, who had long battled with Protestants over whose religion and values would be taught in school. Catholics lost this battle, and when they did, many left the public system. They built their own schools and sought state funding for them. State funding of private schooling had not initially appealed to Protestants but gained in popularity among a wider swath of religious voters in the 1970s and 1980s. The principal rationale was that the public schools were becoming increasingly secular and hostile to religion. Over time, courts had prohibited school prayer and the teaching of creationism. They also rejected a variety of challenges by religious parents to the secularism of school textbooks. In response to these defeats, evangelical Christians and others began to argue that parents should send their children to schools that reinforced, or at least respected, their core beliefs and values. Moreover, like the Catholics before them, they began to argue that those who made such a choice should receive some sort of government support. Otherwise, some would not be able to afford religious schools, and even those who could afford them would be forced to pay twice—once in taxes for1099 the public schools they did not use, and again for the religious schools that they did.

[D]uring the 1990s the values claim took a back seat as voucher advocates promoted a racial-justice claim in its place. This racial-justice claim came to define the litigation strategy in defense of vouchers, and was essential to achieving the legal victory in Zelman. The racial-justice claim asserted that vouchers provided educational emancipation for poor students, mostly black, trapped in dysfunctional urban districts. Vouchers were hailed as a way for these students to gain access to schools in which they could acquire the academic skills they needed to succeed in college and the workforce. This rationale for vouchers was a significant departure from the earlier theory that had attracted religious conservatives. Unlike the values rationale, the racial-justice claim did not assert that public schools were teaching the wrong values to children or contradicting the parents’ religion. Rather, it argued that the public schools were not teaching children the necessary academic skills, and that private schools could do better. Unlike the values rationale, the racial-justice claim did not defend the rights of all families whose values conflicted with school authorities. Under this claim, the victims were a smaller group of low-income, inner-city children.

[R]eplacing the values claim with the racial-justice claim [has had serious consequences]. On the one hand, the new voucher movement is more attractive to a contingent of African American parents and some of those sympathetic to their plight. On the other hand, it holds less appeal for religious conservatives. Religious conservatives had not, by and large, objected to schools on the ground that they were insufficiently academically rigorous, and they are less attracted to a movement that defines the problem in this way. Furthermore, the new voucher movement, wrapped in the mantle of racial justice, promotes school-choice programs that are targeted at low-income students in urban districts. White religious conservatives do not generally live in these urban districts and do not stand to benefit from the programs.

But even if voucher programs targeted at low-income urban districts did not appeal to religious conservatives, perhaps these limited plans would provide voucher proponents with a toehold that would position them to enact more expansive voucher plans. This was certainly the stated strategy of some voucher proponents. But I suggest a reason to question the effectiveness of this approach. I argue that the new voucher movement will have trouble attracting religious conservatives because of the rise of the accountability movement in education and its impact on voucher programs. The original movement for private school choice was grounded in the notion, shared by libertarians and religious conservatives, that private schools should be largely free of government regulation. Zelman, however, gave the green light to the new voucher movement at exactly the same time that state and national education policy had come to demand greater oversight of all schools, including private schools accepting vouchers. This accountability involves increased regulation of individual schools and demands that they provide information to various governmental authorities. This sort of regulation is opposed by religious groups generally and evangelical educators specifically. As a result, modern voucher programs are replete with government strings that many religious conservatives reject. This combination1100 of circumstances has led to a modern voucher movement that has received constitutional approval, but may lack the necessary political support to thrive. Thus, I predict that Zelman will end up mattering much less than many had thought it would.

NOTES AND QUESTIONS

1. Who is the real or core voucher constituency? To the extent the religious claim was jettisoned for the racial claim, one might query whether one or both of these groups were pawns for another constituency. Is the relative lack of success for vouchers attributable to the perception of the minorities that they were being used as pawns?

2. Foreman notes that charter schools and homeschooling have experienced significant expansion. To the extent those movements involved fewer legal uncertainties, their growth has had fewer impediments. By the time Zelman was decided, parents looking to exit from traditional public schools had options other than a voucher available. In particular, to the extent the purported key constituency in Zelman (inner city minorities) was not religiously motivated and charter schools were increasingly available, Zelman may have been largely irrelevant for parents. In short, timing may have limited the voucher movement.

3. Now that the Supreme Court has upheld vouchers that go to private schools, why have religiously motivated parents failed to reclaim the voucher movement?

4. What are the motivations for private religious schools to enroll voucher students who are not motivated by religion? What are the motivations of other private schools whose mission is purely one of academic excellence?

5. While vouchers have not garnered attention or support on par with charter schools, they experienced a major resurgence during the Great Recession. The growth was due in part to a change in rationale. Aimed at disadvantaged students, states traditionally imposed income eligibility caps on their programs. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 646 (2002); Jackson v. Benson, 578 N.W.2d 602 (Wis. 1998). More recently, however, states have raised or eliminated those income caps, making vouchers available to the middle class as well. Florida was the first state to make this major shift. After making changes to its program to comply with the decision in Bush, the state expanded its voucher program. At the outset of the recession, the state spent $87 million on vouchers. Fla. Dep’t Educ., Corporate Tax Credit Scholarship Program: June Quarterly Report (2009). By 2014, the state had all but eliminated income eligibility caps and drastically increased the amount it would fund per voucher. Fla. Dep’t Educ., Florida Tax Credit Scholarship Program Fact Sheet (Nov. 2015), http://www.fldoe.org/core/fileparse.php/5606/urlt/FTC_Nov_2015.pdf. The result was a quadrupling of voucher spending to $344 million. Id. Other states have followed a similar trajectory. See Derek W. Black, Averting Educational Crisis: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education,1101 Wash. U. L. Rev. (forthcoming 2017) (discussing voucher growth in Indiana, Wisconsin, and North Carolina). What explains this shift in policy?

PROBLEM

A local nonprofit organization whose mission is to ensure quality educational opportunities for disadvantaged students is exploring the possibility of expanding voucher opportunities and needs your assistance in weighing its options and drafting proposed legislation. First, provide your candid appraisal of the extent to which vouchers are likely to meet the needs of disadvantaged students. Second, regardless of your answer to the first question, draft the basic statutory elements of a new voucher program. Your goal should be to propose legislation that is the most likely both to meet your clients’ interests and garner significant support in the legislature. What, if any, restrictions would you place on the students who are permitted to participate in the program? What, if any, restrictions would you place on the type of schools in which students may enroll (secular vs. nonsecular, public vs. private)? What, if any, regulations and requirements would you impose on the schools that enroll students through the voucher program? What amount or percentage of tuition would the voucher cover?

C. HOMESCHOOLING

1. A Constitutional Right?

Although not previously the case, all 50 states now permit homeschooling in some shape or fashion. The number of parents exercising this option for their children remains low, but their ranks are rapidly growing. About 1.5 million students currently attend a homeschool, which represents nearly 3 percent of the country’s total student population. U.S. Dep’t of Educ., The Condition of Education 2009, at 14-15 (2009). Parental motivations for this option are varied. Some question safety in public schools; others seek to shield their children from social influences; some prefer to focus their children’s education on religious matters; others simply believe they can deliver a higher quality of education at home; and, of course, many parents hold all of the motivations. Id. at 15. Many parents whose children are currently enrolled in public schools hold similar views, but due to time and resource limitations cannot exercise the same option. For this reason, the movement will likely hit a ceiling at some point in the near future. But regardless of the numbers, the movement raises several issues that are significant for both the parents who homeschool their children and the public school systems from which they are exiting. In addition to a broad overview of homeschools, the following materials address the most important issues: (1) the state’s authority to compel education; (2) the motivations of parents1102 seeking to homeschool their children and what they suggest about public schools; (3) whether the state has a responsibility to homeschooled students; (4) the extent to which homeschools are entitled to demand resources from the state; and (5) the extent to which states can regulate or prohibit homeschooling.

Pierce v. Society of the Sisters is not a homeschooling case, but the Supreme Court articulated several principles on which both the state and parents rely in defending their positions on homeschooling. The facts in Pierce involved Oregon’s attempt not only to compel all children to attend school, but to compel them to attend public school. The statute in question would have eliminated both private and home schools. As you read the case, note that the Court recognizes the state’s authority to regulate both public and private education, but it also recognizes the interest of parents in controlling their children’s education and pursuing it outside of public schools. Finding the right balance between these two interests is the challenge in homeschooling law and policy.

Pierce v. Society of the Sisters

268 U.S. 510 (1925)

These appeals are from decrees, which granted preliminary orders restraining appellants from threatening or attempting to enforce the Compulsory Education Act.

The challenged act, effective September 1, 1926, requires every parent, guardian, or other person having control or charge or custody of a child between 8 and 16 years to send him “to a public school for the period of time a public school shall be held during the current year” in the district where the child resides; and failure so to do is declared a misdemeanor. There are exemptions for children who are not normal, or who have completed the eighth grade, or whose parents or private teachers reside at considerable distances from any public school, or who hold special permits from the county superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between 8 and 16, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.

Appellee the Society of Sisters is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. It has long devoted its property and effort to the secular and religious education and care of children. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between 8 and 16. In its primary schools many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. It owns valuable buildings, especially constructed and equipped for1103 school purposes. The business is remunerative—the annual income from primary schools exceeds $30,000—and the successful conduct of this requires long time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined.

[T]he Society’s bill alleges that the [Act] conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void.

Appellee Hill Military Academy [operates] for profit an elementary, college preparatory, and military training school for boys between the ages of 5 and 21 years. [Its grade structure and curriculum are essentially the same as that of the public schools, with the exception being that military instruction and supervision are included.] By reason of the statute and threat of enforcement appellee’s business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn. The Academy’s bill alleges that the challenged act contravenes the corporation’s rights guaranteed by the Fourteenth Amendment.

No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

The inevitable practical result of enforcing the act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the state of Oregon. Appellees are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students, or the state. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education.

Under the doctrine of Meyer v. Nebraska, 262 U.S. 390 (1923), we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. [R]ights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. But they have business and property for which1104 they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action.

Generally, it is entirely true that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the state upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any proper power. Appellees asked protection against arbitrary, unreasonable, and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved [in various] cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers.

The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well-recognized function of courts of equity.

The decrees below are affirmed.

NOTES AND QUESTIONS

1. On what basis does the Court invalidate this statute? Is it true that the state has no competent interest here?

2. The education of children involves competing interests between the state, the parent, and the child. What is the state’s interest? Is it inconsistent with parents’ or children’s interests? How does this Court balance these interests, and what compromise does it strike? What other outcomes could the Court have reasonably reached?

3. What authority does the state have to compel education? Do parents have a constitutional right to control the education and upbringing of their children, or is the state simply limited in its authority to indoctrinate children? The Court in Pierce cites Meyer v. Nebraska, 262 U.S. 390 (1923), as precedent for a parental right to direct their children’s education. Meyer involved a statute that prohibited foreign language instruction prior to high school.¹ The Court rejected the notion that the statute served a legitimate civic purpose (as opposed to anti-alien sentiments during the post–World War I period). The Court found that the statute impermissibly interfered with teachers’ rights to engage in their profession and parents’ rights to seek instruction from those teachers. An analogous case arose a few years after Pierce when Hawaii sought to severely restrict (if not extinguish) the operation of foreign language schools. Again, the Court struck down the regulation as an unreasonable restriction on private education. Farrington v. Tokushige, 273 U.S. 284 (1927).

1105

4. To the extent parents have a right to control the education of their children, from where in the Constitution does this right emanate: freedom of expression, freedom of religion, or liberty rights protected by the Fourteenth Amendment? As you will see, subsequent courts will struggle with this question and whether any such right exists at all. Part of this uncertainty is due to the fact that the Court’s opinion in Pierce was decided before the First Amendment was incorporated through the Fourteenth Amendment and made applicable to the states (the Bill of Rights limits federal power, not state power, and thus requires incorporation through the Fourteenth Amendment to apply against states). See William G. Ross, The Contemporary Significance of Meyer and Pierce for Parental Rights Issues Involving Education, 34 Akron L. Rev. 177, 178-179, 183-184 (2000). Moreover, the existence of a constitutional parental right was not necessary to the Court’s holding. Nonetheless, the Court has subsequently cited Pierce as recognizing such a right. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 213-214 (1972); Griswold v. Connecticut, 381 U.S. 479, 482 (1965). A plurality of the Supreme Court recently reiterated this notion, albeit in the context of a noneducation case:

The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” We returned to the subject in Prince v. Massachusetts, and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

Troxel v. Granville, 530 U.S. 57, 65-66 (2000).

5. Should the state’s power to regulate education impose a corollary duty on the state to ensure for the proper education of children?

The following article excerpt by Catherine Ross connects Pierce and its progeny to the question of whether parents have a right to homeschool their children and the extent of the state’s power to regulate it. Ross also discusses the recent resurgence of homeschooling and the motivations of parents pursuing it. Her article is followed by an excerpt by Judith G. McMullen that provides an overview of the various statutory approaches to homeschooling by the states.

1106

Catherine J. Ross, Fundamentalist Challenges to Core Democratic Values: Exit and Homeschooling

18 Wm. & Mary Bill Rts. J. 991 (2010)

A. A Brief Legal History

The rise of formal schools and the adoption of compulsory school laws transformed schooling in nineteenth-century America. Beginning in the second quarter of the nineteenth century, the common school movement led by Horace Mann and other reformers resulted in the widespread availability of free public schools. Homeschooling virtually disappeared in the United States by the early twentieth century as states (beginning with Massachusetts in 1852 and ending with Texas in 1915) adopted and enforced laws requiring parents to make their children literate and, later, to send their children to a formal school for at least part of every academic year.

The constitutionality of one brand of compulsory school law reached the United States Supreme Court in 1925. In Pierce v. Society of Sisters, the Court overturned a compulsory school law that parents could only satisfy by enrolling their children in public schools, barring the use of sectarian or other private schools. The Court held that parents must have the right to choose among approved ways of satisfying the compulsory education law, but in doing so it underscored that the case did not challenge “the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require…that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.”

The Court has never fleshed out the extent of the state’s power to regulate independent schools. Today, the vast majority of states impose curricular requirements on private schools, and these requirements appear to be largely unchallenged. Similarly, the Court has never had an occasion to consider the reach of the state’s authority to regulate homeschooling, which is completely unregulated in states such as Alaska, and in other states subject to minimal requirements, ranging from mandatory notice to the state that the parents intend to homeschool to reporting and testing requirements regarding mastery of core curricular subjects such as reading and math. It stands to reason, however, that if states can regulate licensed private schools, the educational needs of children make it even more important for the state to provide minimum educational standards for children whose schooling takes place completely immune from the view of strangers.

Homeschoolers nonetheless frequently rely on the language in Pierce regarding parental rights for authority not only to teach their children at home, but also to do so without any government oversight at all. These arguments almost always fail. State courts and lower federal courts have repeatedly rebuffed assertions by sectarian schools and homeschoolers that they are constitutionally entitled to complete freedom from state oversight.

During the first half of the twentieth century, some state courts accepted defenses to charges of violating the compulsory school laws that would not be1107 credible today. When many people still lived in rural communities where transportation was limited, some courts excused parents who taught their children at home when the distances were too far and the town did not provide transportation or the travel conditions were too dangerous due to isolated country roads. Even then, however, school authorities were often unwilling to grant parents permission to teach their children at home where statutes provided discretion to do so.

By the middle of the twentieth century homeschooling had virtually disappeared, and its legal status was uncertain at best. It is estimated that by mid-century no more than 10,000 children satisfied the compulsory school laws by studying at home. Homeschooling without authorization left parents vulnerable to charges of child neglect because the state did not recognize homeschooling as a legitimate alternative to public schools or organized private schools.

Homeschooling experienced a gradual resurgence beginning in the 1960s, initially as part of a progressive movement influenced by educational theorists who favored unstructured learning. Starting in the late 1970s some state courts began to interpret the compulsory education statutes to allow parents to homeschool if they provided their children with an education equivalent to the training offered in the public schools. But as public schools adopted more progressive approaches to learning, “conservative and religious families were surprised to find themselves in a countercultural position” as they began to homeschool. Homeschooling remained illegal in the majority of states in 1981. Court decisions, combined with effective lobbying by Christian homeschoolers that prompted statutory reforms, led to a legal revolution so that by 2000, homeschooling was legal under some circumstances in all fifty states, whether by judicial decree or statute.

The question of whether homeschooling parents have violated the compulsory education laws often turns on whether the statutory language in the state’s compulsory education law provides a mechanism for an alternative to an organized, licensed school. Where it does not, some courts have allowed parents to claim that they run a private school in the sense contemplated by the statute. But even today, homeschooling as generally defined—parents teaching their own children at home—exposes parents to legal liability, shocking parents and home school proponents.

B. Who Homeschools and Why

While it remains a sliver of the educational landscape, homeschooling is growing rapidly. In 2007, the most recent year for which data are available, about 1.5 million children (or roughly 2.9% of school-aged children) were being homeschooled in the United States. Some experts predict that homeschooling will grow at a rate as fast as fifteen to twenty percent annually in some parts of the country.

Proponents of homeschooling emphasize that parents from all walks of life homeschool and that they do so for many different reasons. That is true as far as it goes. Homeschoolers live in every part of the country, include every race and religion, and fall at various points along the socioeconomic spectrum. The vast1108 majority of homeschoolers, however, are white and Christian, and they choose to homeschool because of their religious beliefs and their desire to protect their children from conflicting messages.

Federal surveys taken in 2003 and 2008 clarify the depth of religious conviction among homeschoolers. In 2003, seventy-two percent of homeschooling parents reported that one reason they teach their children at home is to provide “religious instruction.” By 2007, [that number rose to] eighty-three percent. Although in 2003 only thirty percent of homeschoolers called religious instruction their “primary” reason for teaching their children themselves, some other reasons offered as “primary” may reduce to religion. For example, homeschooling parents cite their desire to protect their children from “negative peer pressure,” much as the Amish parents in Yoder worried about the goings-on in high school. Muslims are also increasingly turning to homeschooling to protect their children from drugs and their daughters from “dressing like hoochies, cursing and swearing and showing disrespect toward their elders,” as well as to protect children from prejudice.

Homeschoolers also voice “dissatisfaction with academic instruction” offered in the public schools. We should interpret “dissatisfaction with academic instruction” in light of other things that we know about the attitudes of conservative Christian homeschoolers. Michael Farris, a founder of the Home School Legal Defense Association, has warned of the dangers of public education, which according to him include “promoting values that are questionable or clearly wrong: the acceptability of homosexuality as an alternative lifestyle; the acceptability of premarital sex as long as it is ‘safe’; the acceptability of relativistic moral standards.” We can infer that many homeschoolers’ concerns about instruction in the public schools likely include objections to sex education, evolution, gender equality, and the choice of secular curricular materials. As Rob Reich has pointed out, religious homeschoolers seek to give their children “a proper religious education free from the damning influences of secularism and pop culture” and they make no secret of that fact.

All of these primary reasons for homeschooling—both those that are expressly religious and those that resonate in a family’s conservative religious beliefs—indicate that almost ninety percent of parents who homeschool do so for reasons stemming from their religious beliefs. The survey data clearly confirm the anecdotal evidence suggesting that homeschooling is dominated by conservative Christians.

NOTES AND QUESTIONS

1. Should states encourage, discourage, or remain neutral toward homeschooling? Are parents’ motivations for homeschooling their children an important consideration in assessing homeschooling as an educational policy, or should educational quality be the only consideration? Ross argues in another portion of her article that shielding children from socialization and secular ideas is inconsistent with the state’s interests. Thus, homeschooling, regardless of the1109 quality of basic instruction therein, poses a challenge to our civic and constitutional values, particularly those related to tolerance. Whose interests should trump, the states’ or the parents’?

2. Many educators and policymakers approach homeschooling with suspicion or concern. What are those suspicions? Are they well founded? What is the relatively monolithic racial and religious demographic makeup of homeschools indicative of, if anything? Are public schools particularly hostile toward these groups, or are these groups hostile toward public schools?

2. Regulation of Homeschooling

Judith G. McMullen, Behind Closed Doors: Should States Regulate Homeschooling?

54 S.C. L. Rev. 75 (2002)

Although all fifty states and the District of Columbia have compulsory education laws, homeschooling is currently legal in all fifty states. State regulation of homeschooling varies widely, from states that have few restrictions to states that have many. Homeschooling laws have been characterized as falling into three separate categories: “private school laws, equivalency laws, and home education laws.”

The first category, “private school laws,” refers to states that treat a home school as a private school. For example, in Alabama the statute allows home schools to qualify as church schools if they “are operated as a ministry of a local church, group of churches, denomination, and/or association of churches.” Once this rather broad definition is met, there are no subjects required by state law, no minimum attendance requirements, no teacher certification requirements, nor any testing requirements. The homeschooling parent need only file a notice with the local school superintendent and maintain an attendance register. Similarly, children in Illinois who are attending a private school, where instruction is in English and “where children are taught the branches of education taught to children of corresponding age and grade in the public schools,” meet the requirements of the compulsory attendance law. As early as 1950, the Illinois Supreme Court established that a home school could be a private school.

Texas also treats home schools as private schools. In Texas, “home schools do not have to initiate contact with a school district, submit to home visits, have curriculum approved or have any specific teacher certification. Home schools need only have a written curriculum, conduct it in a bona fide manner and teach math, reading, spelling, grammar, and good citizenship.”

States having equivalency laws “exempt children from compulsory attendance laws if they are receiving ‘equivalent instruction’ elsewhere. While these laws may vary somewhat from state to state, it’s difficult to define ‘equivalent,’ and the burden of proof is on the state.” However, “equivalency states” may require more extensive paperwork by the parents. For example, Connecticut1110 allows a parent to homeschool if that parent “is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools.” Connecticut State Department of Education procedures require parents to file a “Notice of Intent” form with the local school superintendent. Required information includes “name of the teacher, subjects taught, days of instruction, and the teacher’s method of assessment.” Although standardized tests are not required, “an annual portfolio review will be held with the parents and school officials to determine if instruction in the required courses has been given.” Connecticut recently considered legislation to impose more restrictions on homeschooling parents. These proposed changes were vigorously opposed by homeschooling advocates. And after homeschoolers reached an agreement with the Committee Co-Chair who supported the bill, the bill was allowed to die in committee.

Massachusetts provides another example of an “equivalency state,” because it allows parents to exempt themselves from compulsory attendance requirements by demonstrating that they are providing an equivalent education for their children. Massachusetts parents must obtain advance approval to operate a home school and must provide instruction in reading, writing, English, geography, arithmetic, drawing, music, United States history and constitution, citizenship, health, physical education, and good behavior. However, the local school authority may “not dictate the manner in which the subjects will be taught.” Periodic testing, progress reports submitted by the parents, or home visits (if approved by the parents) may be used to evaluate the progress of homeschooled children.

Home education law states have specific regulations that apply to home schools. These vary greatly from state to state and may include requirements for home teacher certification, curriculum, and other restrictions. As a practical matter, requirements may be similar to those imposed by states in the previous categories: the difference is that these states have a specific homeschooling statute.

For example, Ohio has a homeschool statute that exempts children from compulsory school attendance as long as the requirements of the statute are met. These statutory requirements include educational requirements for the parent who is doing the teaching (she must have a high school diploma, GED, test scores that demonstrate high school equivalence, or must work under the supervision of a person holding a baccalaureate degree until the children’s test scores reach a reasonable level); required courses (e.g., math, language arts, science); and testing requirements for gauging the children’s progress.

Another approach is demonstrated by the South Carolina homeschool statute, which offers three options to homeschoolers. The first option allows homeschooling if the school district board of trustees approves the instruction. However, the board must approve the instruction if the parents meet statutory requirements for parental qualifications (high school diploma, GED or baccalaureate degree), minimum days of instruction and hours per day, records, testing, curriculum, and library access. Options two and three exempt parents who are members of the South Carolina Association of Independent Home Schools or1111 another bona fide homeschool organization authorized by the statute from some of the Option one requirements, most notably testing.

In contrast, Wisconsin’s homeschooling law requires that a “statement of enrollment” be submitted annually to the department of education but does not impose minimum teacher qualifications and does not require standardized tests or other annual evaluation of student progress. Still another approach is illustrated by the North Carolina homeschooling statute, which requires teachers to have a high school diploma or GED, requires annual standardized testing of the children, and requires attendance and disease immunization records. These four states illustrate that there is no uniformity of requirements, even among states with specific homeschooling statutes.

QUESTIONS

What level of regulation should states exercise over homeschools? What justifies more regulation? What justifies less?

The following case offers a snapshot of one state’s approach to regulating homeschools, along with the legal challenges it generated. As you read it, pay particular attention to the fact that the plaintiffs rested their case on a general fundamental right of parents rather than a free exercise right.

People v. Bennett

501 N.W.2d 106 (Mich. 1993)

Brickley, Justice.

John and Sandra Bennett and their four children live in Wayne County. In 1986, the defendants were charged with four counts of failing to send their children to school. After a trial, the defendants were found guilty and fined $50 for each count.

The crux of the defendants’ convictions concerns their decision to withdraw their four children from public school. Dissatisfaction with the public school system was their stated reason for their action, not any religious belief. Defendants believed that they could provide their children a better education than the local public school, even though neither defendant is a certified teacher.

The trial court paid particular attention to the defendants’ claim that their children received instruction from certified teachers. Defendants asserted that two women, Pearl Wander and Julie Kuhar, provided instruction to the children. The court found, however, that the instruction provided by these women1112 did not satisfy the state’s requirements. Ms. Wander, for example, while certified to teach, was never shown to have actually visited the Bennett home. Instead, Ms. Wander had contact with the children through the occasional use of a speaker phone and the family’s occasional visits to the Clonlara campus for a total of four to six hours per month. This contact, the court found, was not sufficient to meet the state’s requirements. Rather, the court concluded, Ms. Wander’s role with respect to the children was that of a supervisor, not a teacher. With regard to Ms. Kuhar, the court noted that she was not in fact certified to teach at the time of her contact with the Bennett children. The fact that defendants were not substantially utilizing the services of a certified teacher and were not themselves certified to teach was sufficient for the trial court to find them guilty of failing to send their children to school.

Defendants argue that there is state and federal case law in support of their contention that, as parents, they have a fundamental right to direct their children’s education. We do not, however, find that the cited cases should be so interpreted. Indeed, we have not found and defendants have not presented any case that finds the existence of a Fourteenth Amendment fundamental right of parents to direct their children’s secular education free of reasonable regulation. We conclude that parents do not have such a constitutional right requiring a strict scrutiny standard. On the contrary, the state may reasonably regulate education, including the imposition of teacher certification and curricula requirements on home-school programs, in order to advance the legitimate interest of compulsory education.

Defendants contend that the Fourteenth Amendment guarantees them the fundamental right to direct the education of their children, even when the desire to direct education does not stem from any religious belief. Defendants cite Pierce v. Society of Sisters, 268 U.S. 510 (1925), for the proposition that it is beyond a state’s authority to interfere with parents’ choice of private education for their children. Similarly, defendants argue, the State of Michigan is telling parents that their children may be taught only by state-certified teachers, the same type of teachers who teach in public schools. Without explicitly so stating, defendants infer that because the state requires the same type of teachers for both private and public schools, it is blurring the distinction between these schools and thus interfering with a parent’s right to choose private schools for their children.

Defendants also quote at length from Wisconsin v. Yoder, 406 U.S. 205 (1972), which held that parents have the right to take their children out of high school and give them informal vocational training in order to protect sincerely held religious beliefs. The defendants noted in Yoder that the Supreme Court emphasized the case involved the “fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children.”

The defendants’ reliance on most of the cases cited is misplaced because those cases deal with religious issues under the First Amendment. This case is1113 specifically not about religion and must be so considered. For example, in a broad sense, Pierce stands for the proposition that parents have a right to choose either public or private education for their children. In a narrow sense, Pierce has been interpreted as providing parents the right to direct the religious education of their children.² In no sense, however, has Pierce been interpreted to mean that parents have a fundamental right to direct all of their children’s education decisions. Pierce does not, therefore, stand for the position that parents have a fundamental right to direct their children’s education under all circumstances, and so the defendants’ reliance on Pierce for this reason is mistaken.

The defendants’ misplaced reliance on Yoder is even more obvious. Hardly a page of that opinion can be read without seeing at least one reference to the parents’ religious beliefs. Indeed, the Court discussed the case in terms of having to balance the state’s interest in universal education with the First Amendment and “the traditional interest of parents with respect to the religious upbringing of their children….” In determining that the parents in Yoder could remove their children from school after the eighth grade in spite of the compulsory education laws, the Court specifically noted that it was dealing with a “centuries-old religious society,” and not “with a way of life and mode of education by a group claiming to have recently discovered some ‘progressive’ or more enlightened process for rearing children for modern life.” The defendants’ argument that Yoder lends support to the claim that parents have any rights to remove their children from school for nonreligious reasons is completely without merit.

In further support of their contention that the Fourteenth Amendment provides a fundamental right to direct the education of their children, defendants cite Meyer v. Nebraska, 262 U.S. 390 (1923), in which the state tried to prohibit private, denominational, parochial, or public schools from teaching in any language other than English to students who had not reached the eighth grade. Defendants contend that this case stands for the proposition that the state could not interfere in parental choices for children’s education in this manner because it interfered “with the power of parents to control the education of their own children.”

The defendants’ reliance on Meyer is misplaced partially for the same reason that reliance upon Pierce is misplaced. At issue in Meyer was whether a statute that prohibited teaching foreign languages denied the defendant teacher his liberty as guaranteed by the Fourteenth Amendment. The only reference to parental rights in the entire opinion consists of one sentence noting that the ban on languages had the effect of interfering with “the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.” While Meyer may have made one general statement concerning parental rights to control their children’s education, it certainly does not stand for the proposition that the1114 Fourteenth Amendment guarantees parents the fundamental right to direct their children’s education free from reasonable regulation.

Defendants contend that the Supreme Court’s most recent affirmation of this fundamental right is found in Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872 (1990). Smith recognizes this parental right as fundamental, defendants contend, because it held that strict scrutiny must be applied when evaluating state actions that interfere with the rights of parents to direct their children’s education. In support of this contention, defendants quote Smith: “Yoder said that the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim…more than merely a ‘reasonable relationship to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”

This, defendants conclude, “reaffirms the applicability of the compelling interest test to a claim of Fourteenth Amendment parental rights standing alone.”

Perhaps the defendants’ most creative interpretation is of the Smith decision. The quotation above explicitly states that it is only when the interests of parenthood are combined with the Free Exercise Clause (a claim defendants are not making) that parents are entitled to constitutional protection of a fundamental right. Nowhere in the opinion does the Court make as bald a statement as the defendants’ reading of Smith. Rather, as the state pointed out, defendants ignored Smith’s clear language and persistently maintain their position despite a directly contradictory holding.

Clearly the Supreme Court cases to which defendants refer do not support their contentions. Similarly, the home-school cases do not support the defendants’ claims. The parents in Mazanec v. North Judson-San Pierre School Corp., 614 F. Supp. 1152 (N.D. Ind. 1985); Ellis v. O’Hara, 612 F. Supp. 379 (E.D. Mo. 1985); and Care and Protection of Charles, 504 N.E.2d 592 (1987), all taught their children at home because of religious convictions. In fact, the Mazanec court specifically held that “within the ambit of the free exercise clause [there is] a constitutional right to educate ones [sic] children in an educationally proper home environment….” These cases do, indeed, recognize the choice of a home school as protected under a parent’s fundamental right, but only under the fundamental right to direct a child’s religious education.

Also of interest is the fact that, while defendants cited no Michigan home-school cases, there are at least two that are directly relevant. One is of particular importance because defendants were parties. In Clonlara, Inc. v. Runkel, 722 F. Supp. 1442 (E.D. Mich. 1989), the [c]ourt held that defendants (and one other home-school couple) “may have the right to choose home based education over public school education or other private school education. However, such home schooling, in the absence of a claim based on religious beliefs, may be subject to reasonable government regulation. Plaintiffs here have no fundamental right to educate their children at home free from reasonable government regulation.”

1115

In Hanson, home-school parents argued that parents’ fundamental rights to direct their children’s education arose from the penumbrae of the First, Ninth, and the Fourteenth Amendments. While giving [the opinions in Meyer, Pierce, and Yoder] due consideration, the court concluded that the Hansons’ asserted rights were nothing more than personal or philosophical choices and were, therefore, not within the bounds of constitutional protection. The court, too, concluded that there is no fundamental parental right to direct a child’s secular education.

Having found strict scrutiny unnecessary because of the absence of a fundamental right, the state’s teacher certification requirement need only satisfy the minimal scrutiny test. In general, it can be assumed the state has an interest in seeing that all children within its borders are properly educated. We also find that ensuring the minimum competence of those entrusted to teach to be, at the very least, a legitimate state interest. Under the second part of the minimal scrutiny test, a state law prevails if it is in any way reasonably related to the state’s interest. Such a relationship is not difficult to establish because a challenge fails if the relationship is “‘at least debateable.’” [While it is true a state need not require that homeschool teachers are certified, we cannot articulate] any reason that the teacher certification requirement is anything but at least reasonably related to the state’s legitimate interest.

NOTES AND QUESTIONS

1. The court in Bennett emphasizes that the authority on which the parents rely for a right to control the education of their children is either misplaced or dicta. If the issue were to come squarely before the U.S. Supreme Court, what would the Court hold? Recall that as recently as 2000 a plurality of the Court asserted, without holding, that such a right exists. Troxel v. Granville, 530 U.S. 57 (2000). The refusal of lower courts to interpret prior case law as recognizing a fundamental right for parents may grow out the Supreme Court’s general position in recent decades of not recognizing “new” fundamental rights that are not explicitly guaranteed in the Constitution. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Reno v. Flores, 507 U.S. 292, 302 (1993). Nonetheless, parental rights, including those in regard to their children’s education, are arguably so obviously fundamental that they defy the need for specific articulation. In fact, the various quotes that the Bennett court indicates are dicta largely proceed on this notion.

2. Many parents bringing constitutional challenges to homeschooling regulations do so on both religious and general parental grounds. As suggested in Bennett, parents asserting a religious claim have been more successful in some cases. In fact, the Michigan Supreme Court itself struck down the teacher certification requirement as applied to parents because the regulation would interfere with free exercise of religion in homeschooling. People v. DeJonge, 501 N.W.2d 127, 129 (Mich. 1993). Are religious and nonreligious claims to homeschooling equivalent in their constitutional significance, or do they justify1116 differential treatment? Regardless, the religious interest in homeschooling clearly has its limits. It is not always altogether clear that compulsory education at private or public school interferes with religion, and some courts have sought to limit the scope of any religious interest in educating one’s child. Unable to identify any clear religious conflict between public education and religion, some parents have asserted so-called hybrid claims in which they have argued “that education of their children was more than a religious duty—according to them, education was religion itself,” which draws on the “‘the cultural strand within conservative Protestantism’ that views ‘all aspects of life, including teaching and learning [as] inherently religious.’” See also Catherine J. Ross, Fundamentalist Challenges to Core Democratic Values: Exit and Homeschooling, 18 Wm. & Mary Bill Rts. J. 991, 1002-1005 (2010). In short, parents believe it is their religious obligation to educate their children at home and free from state regulation. Several courts have rejected this hybrid claim. Combs v. Homer-Center Sch. Dist., 540 F.3d 231 (3d Cir. 2008), cert. denied, 555 U.S. 1138 (2009); Swanson v. Guthrie, 135 F.3d 694, 700 (10th Cir. 1998); Jonathan L. v. Super. Ct., 81 Cal. Rptr. 3d 571 (Ct. App. 2008). Yet, the Michigan Supreme Court in DeJonge countenanced the notion that state regulation interfered with the parents’ desire to deliver a “Christ-centered education.” 501 N.W.2d at 127.

3. Note that the parents in Bennett (and other cases) are not merely asserting the right to homeschool their children. All 50 states, statutorily or judicially, already extend parents that right. Rather, the parents are asserting the right to homeschool their children free, or largely free, of state regulation. This claim is a far more aggressive one. The state has a significant interest in ensuring the basic education of all children, and some form of regulation is necessary to achieve this end. Even once courts recognize a constitutional right to homeschool one’s children, exemption from all state regulation does not automatically follow. The state might have to justify its regulation as the least restrictive means for achieving its goals, but in regard to core aspects of education, the state could easily meet this burden in most instances. It is possible, however, that the state would need show only that its nonsubstantive regulations are reasonable. For instance, while individuals have a constitutional right to free speech, the Supreme Court has consistently upheld the state’s right to reasonably regulate the time, place, and manner of that expression, particularly in schools. See, e.g., Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988); Bethel v. Fraser, 478 U.S. 675 (1986); see also Ward v. Rock Against Racism, 491 U.S. 781 (1989); Clark v. Cmty. for Creative Non-violence, 468 U.S. 288 (1984). Thus, it is far from obvious that a constitutional right to homeschool leads to the outcome that the parents in Bennett were seeking. What level of regulation is constitutionally reasonable or necessary as measured against a constitutional right to control the education of one’s child?

4. At the time of Bennett, Michigan’s statutes made no specific provision for homeschools. They were treated as equivalent to any other private school and subject to the same requirements as private schools, hence the certified teacher requirement. Michigan has since amended its compulsory attendance law and specifically allows homeschools as a distinct exemption from compulsory attendance in public school (although home schools remain free to register under the1117 exemption for private schools). Mich. Stat. §380.1561 (2010). Homeschools, however, must still provide “an organized educational program in the subject areas of reading, spelling, mathematics, science, history, civics, literature, writing, and English grammar.” Id.

3. Access to Public School Resources

The forgoing notes and materials discuss the extent to which parents have the right to homeschool their children and the extent to which the state can regulate homeschooling. They do not address what, if any responsibility, the state may have to assist parents in homeschooling or allow homeschooled students to participate in certain public programs. In particular, parents of homeschooled students have requested that their children be permitted to participate in various extracurricular activities and electives, such as athletic teams and band. More than half of the states do not grant homeschooled students any affirmative right to participate in extracurricular activities. See Paul J. Batista & Lance C. Hatfield, Learn at Home, Play at School: A State-by-State Examination of Legislation, Litigation and Athletic Association Rules Governing Public School Athletic Participation by Homeschool Students, 15 J. Legal Aspects of Sport 213, 223 (2005); see also Lisa M. Lukasik, The Latest Home Education Challenge: The Relationship Between Home Schools and Public Schools, 74 N.C. L. Rev. 1913, 1973 n.368 (1996) (noting that some state laws may give local districts the discretion to grant access to homeschooled students). In some states, parents have challenged prohibitions on nonpublic school students participating in extracurricular activities as a violation of their First and Fourteenth Amendment rights. Thus far, however, courts have generally been unreceptive to their claims. See, e.g., Pelletier v. Me. Principals’ Ass’n, 261 F. Supp. 2d 10 (D. Me. 2003); Jesuit Coll. Preparatory Sch. v. Judy, 231 F. Supp. 2d 520 (N.D. Tex. 2002); Thomas v. Allegany Cty. Bd. of Educ., 443 A.2d 622 (Md. Ct. Spec. App. 1982); Reid v. Kenowa Hills Pub. Schs., 680 N.W.2d 62 (Mich. Ct. App. 2004). But see Snyder v. Charlotte Pub. Sch. Dist., 365 N.W.2d 151, 153 (Mich. 1984). For a full overview of the law regarding access for homeschooled students and a discussion of the growing number of states that do provide access, see Christina Sim Keddie, Homeschoolers and the Public School Facilities: Proposals for Providing Fairer Access, 10 N.Y.U. J. Legis. & Pub. Pol’y 603 (2006). What are the arguments for and against providing access to homeschooled students?

PROBLEM

The hypothetical state of New Virginia has permitted parents to homeschool their children since 1990 with minimal regulation. The only requirements were that homeschooled students take a standardized test each spring to measure their academic progress and that their homeschool teacher have a high school diploma. In recent years, however, the state has been troubled by the finding that a substantial portion of homeschooled students are not1118 performing at grade level on standardized tests. Recognizing its constitutional duty to ensure that all students receive an adequate education, the state legislature is considering eliminating the option of homeschooling altogether. The state’s rationale is twofold. First, the restrictions on and monitoring of home schools necessary to ensure their adequacy would create too large of an administrative burden, too much tension with parents, and, ultimately, too large of a drain on resources needed for traditional public schools. Second, in today’s global economy, it is more important than ever that students receive a quality education, a crucially important part of which is education in pluralistic schools rather than homogenous isolated homes.

Would banning homeschooling under these circumstances be constitutional? Consider all sides of the issue: the parents’, the state’s, and the students’.

1 The statute was enacted following World War I, motivated by anti-alien sentiments, and directed primarily at German language instruction.

2 Note, however, the state’s argument that Pierce is limited as precedent because all discussion of parental rights was dicta. The state noted that Pierce struck down a law that eliminated alternatives to public education as an infringement upon private institutions’ property rights in conducting their businesses. It is conceded, however, that Pierce is better known for its discussion of parental rights than of property rights.

20 U.S.C. §1232	651–52
20 U.S.C. §1400	469, 470, 486, 491
20 U.S.C. §1681	139, 349, 350, 356, 368, 392
20 U.S.C. §1682	350, 357
20 U.S.C. §1686	351
20 U.S.C. §1703	293
20 U.S.C. §4071	453, 865
20 U.S.C. §6311	329, 491, 492, 512
20 U.S.C. §7231	76
20 U.S.C. §7861	998
20 U.S.C. §7901	983
20 U.S.C. §880	291
20 U.S.C. §§1400-1482	469, 470, 471, 486, 491, 502–04, 512, 517, 522, 533–34, 537, 538, 539
29 U.S.C. §705	472
29 U.S.C. §794	465, 493
34 C.F.R. §99	651–52
34 C.F.R. §104	472, 494, 500, 511
34 C.F.R. §106	351–356, 357, 387, 392, 393, 395, 404, 410, 412, 416
34 C.F.R. §200	275
34 C.F.R. §300	471, 502, 512, 514, 517, 537, 538
41 C.F.R. §60	349
42 U.S.C. §1983	436, 437, 449, 485
42 U.S.C. §2000	133, 139, 146, 349, 845
42 U.S.C. §12131	472, 493
42 U.S.C. §12132	493
45 C.F.R. §116	275
84 Stat. 121	274
Ala. Code §31-13-7	340
Ala. Const. of 1901, §256	2
Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq.	465, 470, 472, 493, 499, 500, 501
Ark. Code Ann. §6-21-608	627
Cal. Educ. Code §51204	358
Colo. Const. art. IX, §2	3
Continuing Appropriations and Surface Transportation Extensions Act, 2011, 124 Stat. 3521	957
Education for All Handicapped Children Act of 1975	470, 953
Education Finance Incentive Grant Program, Pub. L. No. 107-110, 115 Stat. 1425	272, 387
Elementary and Secondary Education Act of 1965 (ESEA), 20 U.S.C. 6301 et seq.	7, 273, 291, 296, 326, 327, 329, 951, 953, 979, 998
Every Student Succeeds Act (ESSA), Pub. L. 114-95	7, 273, 275, 277, 326, 491, 952, 963
Family Educational Rights and Privacy Act of 1974, 20 U.S.C. §1232	651, 652
Fiscal Fairness Act, H.R. 1294, 112th Congress (2011)	280
Fla. Const.	280, 1088
Fla. Stat. §233.061 (1999)	358
Ill. Admin. Code tit. 23 (2009)	451
Ill. Comp. Stat. 105 5/10-22.6	627
Ill. Comp. Stat. 105 5/27-20.5	358
Ill. Comp. Stat. 5/10-22.6	358, 627
Ill. Const. art. X (1970)	3
Improving America’s School Act in 1994	1001
Individuals with Disabilities Education Improvement Act (IDEA)	470, 471, 472, 474, 475, 477, 478, 483, 485, 487
La. Const. of 1852	193
M.S.A. Const. art. 13	269
Mich. Comp. Laws Ann. §380.1561	1117
Minn. Stat. Ann. §121A.72	627
Miss. Code Ann. §37-11-18.1	4
Miss. Const. of 1890, §207	2
N.C. Const. art. I, §15	2, 209
N.C. Gen. Stat. Ann. §115C-325	1007

N.J. Const. art. VIII, §IV	2
No Child Left Behind Act of 2001 (NCLB)	7, 90, 273, 275, 289, 312, 326, 329, 386, 388, 491, 492, 512, 531, 951, 952, 954, 956, 957, 958, 962, 976, 977, 981, 990, 998, 1002, 1036
Ohio Rev. Code Ann. §3313.20	627
Pub. L. No. 100-259, 1988 §557	357
R.I. Const. art. XII	209
Rehabilitation Act of 1973, 29 U.S.C. §794	465, 470, 493, 499, 694
Religious Freedom Restoration Act of 1993, 42 U.S.C. §2000	845, 846, 851
Religious Viewpoints Antidiscrimination Act (RVAA)	340, 783, 784
S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010)
S.C. Code Ann. §§59-25-410, 59-25-430	1019
Southern Manifesto, 102 Cong. Rec. 4515-16, 84th Cong. (1956)	28
Student Bill of Rights, H.R. 2373, 110th Cong. (2007-2008)	280
Tenn. Code Ann. §49-1- 302(20)(d)(2)	1036
Tenn. Code Ann. §49-6-1006	358, 1036
Tenn. Stat. Ann. §49-6-3401	567
Tex. Educ. Code §25.152(a)
Vt. Stat. Ann. tit. 16 (2010)	451